Opinion
September 12, 1990
Henry M. Kidder, Jr., for petitioner.
Laurie Bryk, guardian ad litem.
In this proceeding to judicially settle the final account of proceedings of the executor of the estate of Ethel F. Burger, the petitioner requests approval of the attorneys' fees to be paid for legal services rendered to the estate, and direction as to the distribution of two residuary bequests payable to a deceased beneficiary and to an infant, both nondomiciliaries.
As to the fees of the attorney for the estate, the court has carefully reviewed the services described in the affidavit of legal services in light of the relevant criteria set forth in Matter of Freeman ( 34 N.Y.2d 1) and Matter of Potts ( 213 App. Div. 59 [4th Dept 1925], affd 241 N.Y. 593). The court determines that the reasonable value of the services rendered by the attorney for the estate, inclusive of those services to be rendered in connection with the submission of the final decree and distribution thereunder is fixed and allowed in the amount requested. Disbursements are allowed in the sum of $490.53 of which payment has already been received. Proper additional disbursements are allowed upon submission of an itemized statement with the final decree. In addition, the executor is allowed reimbursement for those items listed in schedule C of the account in the sum of $645.93.
As to the distribution of the residuary bequests, it appears that one of the residuary beneficiaries, Jane Luebke, survived the decedent but died a few months thereafter a domiciliary of California. In addition, Jane's only child, Jennifer, who is a minor and a nondomiciliary, is also bequeathed a share of the residuary. The papers submitted indicate that a personal representative of the estate of Jane Luebke has not been appointed nor has a guardian been appointed for Jennifer. The amount payable to the aforesaid beneficiaries is approximately $20,000.
As to the bequest payable to the estate of Jane Luebke, it appears that in lieu of a probate or administration proceeding, the deceased beneficiary's surviving spouse, David Luebke, has obtained an order granting him the "set aside" of his deceased wife's estate valued at $20,000. Pursuant to section 6609 of the California Probate Code, where the net value of the decedent's estate, exclusive of joint assets and certain life interests, does not exceed $20,000 as of the date of death of the decedent and the decedent was survived by a spouse and/or minor children, the court may "set aside" the entire estate to the spouse and/or children. An order granting "set aside" may be obtained in lieu of a probate or an administration proceeding and once granted, precludes any further proceedings in the administration of the estate unless additional property in the estate is discovered. The court has the discretion to assign the whole estate to the surviving spouse or the whole to the children. It appears that section 6609 is similar in purpose and effect to the family exemption provisions of EPTL 5-3.1 in that title to the property is said to vest in the spouse and/or children as of the time of death, thereby rendering inoperative any contrary testamentary disposition. (See, Estate of Pezzola v Pezzola, 112 Cal.App.3d 752, 169 Cal.Rptr. 464.)
The executor has submitted an exemplified copy of an order of a California court evidencing that "small estate set-aside" was granted in the estate of Jane Luebke. The order recites that Jane Luebke was survived by a spouse, David Luebke, and a minor child, Jennifer. Jane Luebke died testate and under the terms of her will, her spouse is named as the sole beneficiary provided he survived the decedent by 180 days. The sole asset of the testamentary estate is stated as being a $20,000 expectancy in cash from the estate of Ethel Burger and all debts and expenses of the estate have been paid. The order provides that title to the aforesaid bequest vests in David Luebke and authorizes the executor of the estate of Ethel Burger to transmit $20,000 to David Luebke. In the event that the moneys payable to David Luebke exceed $20,000, he has executed an assignment of said excess to his daughter Jennifer. In addition, the executor has submitted an affidavit by David Luebke wherein he represents that his deceased wife had no known creditors in New York.
SCPA 2221 provides that a bequest payable to a nondomiciliary deceased beneficiary may be made to the personal representative of the beneficiary's estate. Despite the aforesaid authority, the courts of this State have permitted distribution to be made directly to the deceased beneficiary's distributees where no personal representative has been appointed and the laws of the foreign jurisdiction operate so as to vest title to the property directly in these distributees without the necessity of a probate or an administration proceeding. (Matter of Fahs, 33 Misc.2d 796 [Sur Ct, N Y County 1962]; Matter of Merrill, 188 Misc. 441 [Sur Ct, Westchester County 1946]; Matter of Woodruff, 135 Misc. 203 [Sur Ct, Kings County 1929].)
Upon the facts presented herein, the court directs that a distribution of the share payable to the estate of Jane Luebke be made to David Luebke, said payment not to exceed the sum of $20,000. Any amounts in excess of the $20,000 shall be held for the benefit of Jennifer Luebke pursuant to the directives recited below.
With respect to the distribution of the residuary bequest payable to the infant nondomiciliary, Jennifer Luebke, EPTL 13-3.4 authorizes the executor to pay this share to a foreign guardian without the necessity of an order of this court. Accordingly, the executor may distribute Jennifer's share to her foreign guardian, or, of course, to a guardian appointed by this court. In the event a foreign guardian or a local guardian has not been appointed within 90 days of the signing of the decree to be entered herein, the executor is authorized to pay said share to the Finance Administrator of the City of New York for the benefit of Jennifer Luebke, subject to the further order of this court.
The compensation of the guardian ad litem for services rendered on behalf of her ward is fixed and allowed in the sum of $500.