Matter of SilvermanAnnotate this Case
Decided on October 29, 2013
Sur Ct, Nassau County
In the Application of Doreen Shelley Sauerhaft as Guardian of the Person and Property of Alan Fredrick Silverman, Pursuant to SCPA Article 17-A, For Leave to Lift Restraints, Transfer Assets into a Supplemental Needs Trust Fund.
Jack N. Posner, Esq.
1100 Franklin Avenue
Garden City, NY 11530
Edward W. McCarty III, J.
to be received from the estate of Fredrick's father. The petition also requests that a trustee's bond be waived because of the small sum involved.
The office of the Attorney General has appeared and interposed an objection
"to the proposed SNT because the petition seeks to waive the requirement of a trustee's bond. Petitioner presumes that the Surrogate's Court will waive a bond until the time as the trust corpus exceeds $30,000.00. While this may often be the case, we believe the automatic presumption is unwarranted. Therefore a bond should be posted and the language in the SNT should be adjusted accordingly."
It is the general practice of this court to require a bond only where the corpus of the guardianship estate exceeds $30,000.00. Petitioner's counsel was mindful of this practice and not making a presumption. The proposed SNT, and particularly the "bond" provision, is in the form pre-approved by the court and distributed to counsel upon request. The Attorney General presents no legal argument or facts as to why the court's general practice should not be applied in the instant case. The objection is accordingly overruled and the SNT approved.
The petition also seeks approval of legal fees. The court has reviewed the affidavit of services and time sheet submitted by counsel. Counsel has spent or anticipates spending a total of [*2]7.75 hours of attorney time, at $300.00 per hour, with a value of $2,325.00 and seeks reimbursement for its disbursements totaling $293.32. In fixing fees, the court is required to consider various criteria including the size of the estate, the time spent, the nature and extent of the work performed, the difficulties involved, the size of the estate and the results achieved, among others (Matter of Freeman, 34 NY2d 1 ; Matter of Potts, 213 App Div 59, affd 241 NY2d 593 ). Based on a review of the various criteria mentioned above, and mindful of the limited corpus, the fee of the attorney for the petitioner is set in the amount of $2,000.00. Reimbursement of $293.32 is also approved.
Accordingly, it is
ORDERED, that the petition is granted and that said trustee is hereby directed to sign the trust agreement, file an oath and designation as trustee and file the signed original trust agreement with the court. A bond will be required for any trust assets over $30,000.00. The bond shall be in an amount not less than 105% of the value of the trust; and it is further
ORDERED, that any restraints on the letters of guardianship of the property of said respondent are lifted to allow the guardian to collect the assets and use same to fund the trust; and it is further
ORDERED, that if the trustee is desirous of using any of the trust funds for the respondent, a proposed budget should be presented at the time; and it is further
ORDERED, that an annual accounting must be filed with the court, a copy of which must be served upon Nassau County Department of Social Services, Resources Unit and proof of service must be filed with the court; and it is further
ORDERED, that within 30 days of signing of this order, the trustee must file proof of deposit of trust assets and such proof must include the name and address of the depository as well as account number and the amount deposited; and it is further
ORDERED, following the establishment of such account, the trustee shall pay the sum of $2,293.32 to Jack Posner, Esq. on account of legal fees and disbursements.
Dated: October 29, 2013
EDWARD W. McCARTY III
Judge of the