Saasto also prepared comprehensive submissions for court-ordered mediation in the Connecticut action, which he attended with the petitioner and her family, and interviewed the witness to the accident named in the police report and the Connecticut Medical Examiner. Based on the foregoing evidence, which was amply supported by the record, a reduction in the amount of the net contingent attorney's fee awarded to Cassisi from 35% to 10% is appropriate, with a corresponding increase in the amount awarded to Saasto from 65% to 90% ( see Matter of Bitzer, 208 A.D.2d 723, 617 N.Y.S.2d 524). Saasto's remaining contention is without merit.
We agree with the Surrogate that certain services which the appellant provided were not related to the administration of the estate or involved the individual interests of the two legatees, neither of which is compensable. However, our review of the record leads us to the conclusion that the appellant was entitled to an award for providing 70 hours of services at its hourly rate of $175, for a total award in the sum of $12,250 ( see Matter of Bitzer, 208 A.D.2d 723, 617 N.Y.S.2d 524; cf. Matter of Mingoia, 212 A.D.2d 531, 623 N.Y.S.2d 113). The appellant also is entitled to the disbursements expended for an heirship search, which was required to obtain the probate of the decedent's will and did not constitute attorney overhead ( see Matter of Hopkins, 17 Misc.3d 1129[A], 2007 N.Y. Slip Op. 52191[U], 2007 WL 4110625; Matter of Walker, N.Y.L.J., March 30, 2011, at 31, col. 6; Matter of Herlinger, N.Y.L.J., April 28, 1994, at 28, col 6), and the cost of a title search conducted with respect to the real property bequeathed to the executor, which the executor should pay, individually.
he Attorney General appeals as to the bank fees issue. The provisions of the Prudent Investor Act, enacted in 1994 ( see L 1994, ch 609), apply to the management of estates by executors ( see EPTL 1-2.13, 11-2.3 [e] [1]). Under the Act, an executor may "delegate investment and management functions" (EPTL 11-2.3 [b] [4] [C]), subject to certain statutory provisions regarding delegation ( see EPTL 11-2.3 [c]), and the costs for such delegation are permitted only "to the extent they are appropriate and reasonable" (EPTL 11-2.3 [b] [4] [D]; see EPTL 11-2.3 [c] [1] [D]). Surrogate's Court is vested with jurisdiction to "review the reasonableness of the costs of such delegation" by an executor (SCPA 2115; see Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA 2115, at 563; see also SCPA 2307). If Surrogate's Court finds that the delegation was inappropriate or an expense unreasonable, it may assess the cost for such delegation against the executor's commission ( see Matter of Bitzer, 208 A.D.2d 723). Here, at the time that petitioner was appointed executor of decedent's estate, the funds comprising the estate had reportedly been managed effectively by the Trust Company for 14 years.
Accordingly, the Surrogate properly exercised his discretion in denying commissions to the executors and imposing a surcharge on them for losses to the estate ( see, Matter of Donner, 82 NY2d, supra, at 587; Matter of Greatsinger, 67 NY2d 177, 181; Matter of Campbell, 138 AD2d 827, 829; Matter of Janes, 165 Misc 2d 743, 758, supra). We have considered the appellants' remaining contentions and find them to be without merit ( see, Matter of Greatsinger, supra; Matter of Leonard, 230 AD2d 798; Matter of Bobeck, 196 AD2d 496, 497-498; cf., Matter of Bitzer, 208 AD2d 723).
The task of rendering the account herein was a routine executorial function ( see, Matter of McCranor, 176 A.D.2d 1026, 1027). It is a well settled principle that the estate cannot be charged attorney's or accountant's fees for the performance of such routine executorial tasks ( see, Matter of Bitzer, 208 A.D.2d 723; Matter of McCranor, supra; Matter of Jones, 168 A.D.2d 448, 449). In addition, we note that the preparation of the accounting in this case would be fairly uncomplicated given that the principal of the trust consisted of a single account with Merrill Lynch and that there are only two distributees, one of whom is the other co-trustee and both of whom were prepared to sign general releases.
The time records show that the attorney: (i) prepared the petition for letters of administration; (ii) had conferences with the family members; (iii) prepared a stipulation among the family members regarding a prenuptial agreement between the decedent and his wife; (iv) engaged in communications with client; (v) analyzed appraisal issues; (vi) engaged in conferences with the real estate broker; (vii) drafted correspondence to creditors; and (viii) prepared the accounting and related court papers. A review of the time sheets indicates that counsel included time spent preparing his affirmation of legal services and work which is executorial in nature, neither of which is compensable (Matter of Bitzer, 208 AD2d 723 [2d Dept 1994]; Matter of Gallagher, NYLJ, Feb. 2, 1993, at 26, col 3 [Sur Ct, Bronx County]). Based upon the factors set forth above, including the size of the estate, the court fixes counsel's fee in the amount of $5,000.
The court notes that services that are executorial or ministerial in nature are not subject to compensation as legal expenses because the fiduciary is compensated to perform those services out of commissions (Matter of McCranor, 176 AD2d 1026 [1991]). The rule against the estate paying legal fees for executorial services is intended to prevent the estate from being billed by the lawyer for what the executor is paid commissions to do (Matter of Bitzer, 208 AD2d 723 [2d Dept 1994]; Matter of Mergentime, 207 AD2d 452 [2d Dept 1994]; Matter of Passuello, 184 AD2d 108 [3d Dept 1992]; Matter of Schoonheim, 158 AD2d 183 [1st Dept 1990]). Nevertheless, the executor may be personally liable to the attorney for these services (Matter of Grace, 62 Misc 2d 51 [1970]).