Matter of Mackey
Annotate this CaseDecided on June 14, 2013
Sur Ct, Nassau County
In the Matter of the Account of Proceedings of Carol Pramberger, as Executor of the Estate of Harrison Dean Mackey, Deceased.
356386/C
Richard L. Hutchinson, Esq. (for petitioner)
Hutchinson & Hutchinson, LLP
127 South St., Ste. 2
Oyster Bay, NY 11771
Gerald Eisenberg, Esq. (for respondent)
Eisenberg & Margolis, LLP
100 Quentin Roosevelt Blvd.
Garden City, NY 11530
Edward W. McCarty, J.
The account before the court, dated May 14, 2012, was filed by the executor, Carol Pramberger, on September 11, 2012, in response to a petition to compel the filing of an intermediate account, brought by Karen Jare, a legatee under decedent's last will and testament.
BACKGROUND
Harrison Dean Mackey died on April 3, 2009, a resident of Bayville. Decedent left a will dated August 20, 2001 which was admitted to probate on November 27, 2009. Preliminary letters testamentary were issued to Carol Pramberger on June 5, 2009 and full letters testamentary were issued to her on November 29, 2009. The account covers the period between June 5, 2009 and March 29, 2012.
THE ACCOUNT
The account filed shows the receipt of $1,117,103.50 of estate principal, which was supplemented by realized increases of $4,050.75 and income collected totaling $26,894.68. This resulted in total charges of $1,148,048.93. This amount was reduced by realized decreases in principal of $83.72, administrative expenses through March 29, 2012 in the amount of $142,115.93, and payment of creditors' claims in the amount of $11,910.48. The account further reflects distributions of principal totaling $722,400.00, leaving a balance of $271,538.80 on hand.
The executor seeks approval of the accounting. A handwritten amendment of the petition [*2]also asks for an order approving paid and unpaid attorney's fees and disbursements incurred in this proceeding. The petition lists 24 individual beneficiaries under the will and one not-for-profit organization. Some, but not all, of these beneficiaries are named in the citation submitted to and issued by this court. The church is not named in the citation. The citation does, however, include numerous other individuals who are not even listed on the petition. Some, but not all, of the parties listed on the citation have been served. Many of the parties named as legatees in the will do not appear in the account or in the citation. None of the papers filed with the court provide any explanation for these very significant discrepancies.
Together with a letter dated October 4, 2012, counsel for the executor subsequently filed a document titled "Amended Approval of Account, Receipt, Release, Refunding, Waiver of Citation and Indemnity Agreement." The amended document, which the executor did not sign, reflects charges of $1,290,373.50, increases of $4,050.75, and income collected of $26,894.68, for total charges of $1,321,318.93. It reflects realized decreases of $173,353.72, administration expenses of $142,115.93, paid creditor's claims of $11,910.48, and distributions of principal in the total amount of $722,400.00, leaving a balance on hand of $271,538.80. Revised schedules were not provided. Although there are signature lines for the executor and 43 other parties, including "The New Golf Club of St. Andrews Scotland" and the "Oyster Bay High Golf Program," the only signature to appear is that of Karen Jare, the beneficiary who filed the petition to compel the executor to account. The signature page actually signed by Karen Jare, however, differs from the format of the signature page in the document itself, and the acknowledgment is dated one day after counsel's cover letter, raising questions about the validity of the signed document.
Counsel for the executor was contacted by the accounting department of this court and asked to make necessary corrections to the account; counsel refused, presumably under the incorrect assumption that the supplementary document filed with counsel's letter of October 4, 2012 terminated the executor's obligation to account.
ANALYSIS AND CONCLUSION
The court has carefully reviewed the account and other documents filed on behalf of the executor. In reviewing Schedule C, the court noted that it includes multiple reimbursements of the executor for travel expenses that may not be allowable. Schedule C-1 includes estimated unpaid legal expenses of $12,000.00, in addition to legal expenses shown on Schedule C, and yet the petition does not ask the court to review and fix counsel's legal fees.
It is well established that an account may be directed on the court's own motion (SCPA 2205; Stortecky v Mazzone, 85 NY2d 518 [1995]). An executor is entrusted by the court with assets belonging to other people; accordingly, the executor's accountability is crucial (See Matter of Iannone, 104 Misc 2d 5 [Sur Ct, Monroe County 1980]). Once an account is filed, it is then the responsibility of the executor to obtain jurisdiction over all of the parties interested in the estate.
The court's records indicate that only eight interested parties were served, despite the fact that documents filed by the executor reflect as many as 44 interested parties. No receipts and releases have been filed for any of the beneficiaries other than the lone document which appears to bear the signature of Karen Jare. In addition, the executor failed to name or serve citation upon the Office of the New York State Attorney General on behalf of any beneficiary devoted to charitable purposes (see EPTL 8-1.4 [e] [1] [d]).
For the reasons set forth below, the court finds the accounting proceeding initiated by the [*3]executor, Carol Pramberger, to be inadequate and incomplete. The court directs the filing of a corrected and amended account and a supplemental citation within 30 days of the date of the issuance of this decision and the executor to secure service of that citation on all parties who have not executed a waiver and consent. Counsel for the executor is directed to file an affirmation of legal services so that the court may fix his fee.
This constitutes the decision and order of the court.
Dated:June 14, 2013
EDWARD W. McCARTYJudge of the
Surrogate's Court
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