• Surrogate's Court, Bronx County
  • Jan 24 2013 (Date Decided)
  • Surrogate Malave Gonzalez

ESTATE OF BRUNILDA HOFFMAN, also known as BRUNILDA T. HOFFMAN, Deceased — This is an uncontested proceeding by the administrator, the decedent's spouse who is also the guardian of the person of one of the decedent's sons under a disability, to judicially settle his account and for leave to, inter alia, establish and fund a supplemental needs trust (SNT) for the benefit of that son with his distributive share of the estate. The petitioner is the proposed trustee of the SNT. Another son of the decedent is the proposed successor trustee.

The guardian ad litem appointed for the son under a disability reports that her ward has Down's syndrome, receives Supplemental Security Income and Medicaid benefits, resides with an aunt in an apartment at the decedent's former home in the Bronx and the petitioner currently pays his rent. With respect to the account, the guardian ad litem initially objected to the distributions to the petitioner and the other son, alleging that they exceeded the proper amounts to the detriment of her ward; however, the petitioner then amended the account to reconcile any overpayments and requested statutory commissions which partially offset any overpayment to himself. The guardian ad litem expresses concern over counsel's request for an additional legal fee, but, otherwise, recommends approval of the application, as amended. The New York City Human Resources Administration (HRA), Mental Hygiene Legal Services, First Department (MHLS), and the Social Security Administration (SSA) were served with process, and there was no appearance in opposition.

As the additional legal fee sought does not appear to solely benefit the estate but rather was incurred, inter alia, to resolve the issue of alleged excessive distributions to the possible detriment of the son under a disability, counsel fees are limited to the sum previously paid, and the request for an additional legal fee is denied (see Matter of Freeman, 34 NY2d 1, 5 [1974]; Stortecky v. Mazzone, 85 NY2d 518[1995]).

In the absence of any opposition, and it appearing that the son is a person with alleged severe and chronic disabilities, in that these disabilities are expected to, and do, give rise to a long-term need for specialized health, mental health, developmental disabilities, social or other related services, and who may need to rely on government benefits or assistance (EPTL 7-1.12), the branch of application seeking to establish and fund an SNT is granted, with the SNT to be modified and amended as follows: 1) Paragraph 5.7 is to reflect the current value of the trust assets; 2) Paragraph 4.2 shall require a bond in the initial sum of the total of the current trust assets; and, 3) Paragraph 4.9 shall reflect that the compensation of the Trustee may be paid only upon the further order of the court and upon such notice as the court may direct.

Notwithstanding the lack of opposition, the proposed decree together with a copy of the executed amended supplemental needs trust document shall be settled approving the account as amended upon the New York City Human Resources Administration, Mental Hygiene Legal Services, First Department and the Social Security Administration.

Settle decree and proceed accordingly.

January 24, 2013