Opinion
347223.
Decided on February 15, 2008.
Robert A. Brady, Esq.(guardian ad litem), Pt. Washington, NY, McLenna, Siracusano Chianese(for petitioner). E. Rockaway, NY.
In this pending probate proceeding, the decedent, Helen Ruland, died on April 11, 2007. She was survived by two sons, Stephen and Roy Ruland, and a granddaughter, Erin Trotta, issue of a predeceased daughter, Ellen Mary Trotta. Erin Trotta is a minor and a guardian ad litem was appointed to represent her in this proceeding. The guardian ad litem has no objections to the will dated August 7, 1997 being admitted to probate. The court is satisfied that the will was duly executed and that at the time of its execution the decedent was of sound mind and free from restraint. The propounded instrument will be admitted to probate.
The decedent's will provides that her estate be divided equally between Stephen Ruland, Roy Ruland and issue of any predeceased children (Erin Trotta). Paragraph Fourth of the decedent's will provides the following where any part of the estate vests in a minor:
I authorize and empower my Executor in his absolute discretion, to hold the property so vested in such minor and to invest and reinvest the same, collect the income there from, and during the minority of such minor, to apply so much of the net income there from or of the principal thereof for the care, support, maintenance or education of such minor as my Executor shall deem necessary . . . and to accumulate any such income not so paid, if any, and to invest and reinvest same until said minor shall attain the age of 21 years, at which time the accumulated income and unexpended principal shall be paid over to him . . . The authority conferred upon my Executor by this Article shall be construed as a power only and shall not operate to suspend or prevent absolute vesting of any property in such minor. With respect to any such property which shall vest in absolute ownership in a minor or minors but which shall be held by my Executor as herein authorized, my Executor shall be entitled to such commissions at the rates and manner payable to a testamentary trustee and shall have the same power and authority conferred upon her in Article Fifth.
The decedent nominated her three children as co-executors and directed that they serve without bond. The estate is valued at approximately $345,000.
The guardian ad litem recommended that the infant's share of the estate be placed in trust with the Public Administrator to act as Trustee.
Article Fourth of the decedent's will establishes a power during minority and Stephen and Roy Ruland are the donees of the power (SCPA 103). As donees of a power during minority, they are fiduciaries (SCPA 103). Both Article 10 of the EPTL and the Prudent Investor Act apply to the donees of a power during minority (EPTL 10-3.1[b] and 11-2.3[e][1]). A power during minority is "customarily given to an executor or trustee under a will to avoid the appointment of a general guardian, so that title vests in the infant but the executor or trustee can continue to manage the funds for the infant's benefit until he or she reaches 21" (Fourth Report of the Temporary Commission on the Modernization, Revision and Simplification of the Law of Estates to the Governor and the Legislature, May 31, 1965 at 1331). The authority of a donee of a power during minority is limited to the management of property as title vests in the infant ( Matter of Zuckerman, 175 Misc 2d 974, 975 [Sur Ct, Nassau County 1998]). As the donee does not have title to convey the property to a trust, the guardian ad litem's recommendation to transfer the property to a trust with the Public Administrator as trustee must be denied ( see Matter of Zuckerman, 175 Misc 2d 974 [Sur Ct, Nassau County 1998]).
As a fiduciary, the donee of a power of appointment will not be discharged until he accounts either informally or formally (SCPA 2203, 2210). Further, the co-executors must account before turning the property over to themselves as donees of the power during minority. They should also file an oath and designation as both co-executors of the estate and co-donees of a power during minority. As the will directs that no bond be filed, no bond will be required.
The court has reviewed the affirmation and time records submitted by the guardian ad litem and considering the foregoing and the criteria to be used in fixing attorneys' fees established by Matter of Potts ( 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593) and Matter of Freeman ( 34 NY2d 1) the court fixes the fee of the attorney in the amount as requested and finds a fee of $1,800.00 to be reasonable.
Settle decree.