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Surrogate’s Court Could Not Award Attorney’s Fees for Services Provided to Decedent’s Legatee (as Opposed to Services which Benefitted the Estate)

The Second Department upheld Surrogate’s Court’s ruling that it did not have jurisdiction to award attorney’s fees for the attorney’s (Klein’s) handling of Mental Hygiene Law article 81 proceeding to have decedent’s legatee (Theodore) declared an incapacitated person:

“The Surrogate’s Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent or necessary to do justice in a particular case to which its jurisdiction extends” … . Although the Surrogate’s Court Procedure Act authorizes the court to fix and determine attorney’s fees for services rendered to a beneficiary of an estate (see SCPA 2110[1]), “[t]he only proper parties before the Surrogate on an accounting are creditors or those claiming to be creditors of the decedent” … . Contrary to Theodore’s contention, “the Surrogate’s Court has no jurisdiction over a claim by a creditor against a distributee or legatee of an estate” … . However,”the Surrogate has jurisdiction to determine, and is in the best position to determine, which legal services performed by [an attorney] benefitted the estate, and which benefitted only the individual interests of [a party]” … . Since the record supports the Surrogate’s determination that the services performed by Klein benefitted Theodore personally rather than the decedent’s estate, the court, in effect, upon reargument, properly adhered to its determination that it lacked jurisdiction to set Klein’s fee… . Matter of Tarlow, 2013 NY Slip Op 07491, 2nd Dept 11-13-13

 

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