Matter of Estate of Restuccio

RICHMOND COUNTY
Trusts and Estates

New York Law Journal

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Surrogate Robert Gigante

In an apparent case of first impression, attorney Panagos, named executor in decedent's will, petitioned to have the will admitted to probate. The court noted Panagos did not comply with disclosure requirements for an attorney-executor under Surrogate's Court Procedure Act §2307-a, which would preclude him from receiving a full commission. Panagos submitted an affidavit stating he was exempt from compliance as he was a New Jersey attorney, drafted the will for a then New Jersey resident, and there was no comparable New Jersey law to §2307-a. The court noted it seemed practically impossible for an attorney to draft a testamentary document and foresee where his client would be domiciled at the time of death, thereby complying with applicable laws of the state or country. As such, the court ruled it was only logical to conclude that if a non-New York attorney drafted a will for a non-New York domiciliary and had no knowledge of the client's intent to change domiciles, the attorney could not be expected to comply with a New York statute. Thus, as the instrument offered for probate was duly executed and decedent competent, the court admitted the will to probate and, with the consent of the sole distributee, granted Panagos full commission as executor.

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