Matter of Estate of Martin Jr.

NEW YORK COUNTY
Trusts and Estates

New York Law Journal

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Surrogate Nora Anderson

Estate co-executor Neville sought advance payment of commissions. The court noted this was not the first time Neville sought such payments, finding a prior application for $295,000 was granted. The court also found Neville already paid himself commissions of $175,500 without court order, but did not disclose such wrongdoing in his prior petition. The order was vacated and he was ordered to return the money, of which only $250,000 was returned. Respondents beneficiaries filed objections to the instant application. The court stated the Surrogate's Court Procedure Act unequivocally provided that advance payment of commissions could not exceed the receiving commissions due the fiduciary, unless "persons whose rights and interests were affected by the payment" consented. Here, Neville overlooked that he failed to meet the consent requirement, and also paid himself another $5,000 commission without court authorization. The court ruled Neville's repeated flouting statutory proscriptions raised serious concerns of his fitness to serve as fiduciary. It denied the petition and stated it would entertain submissions on whether he should be removed, and directed to return commissions received without court order.

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