IN THE MATTER OF CLAIRE KATZ


55 A.D.3d 836 (2008)

In the Matter of the Estate of CLAIRE KATZ, Deceased. ELYSE SHAVELSON et al., Respondents; SIGMUND KATZ, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 21, 2008.


Ordered that the decree is affirmed insofar as appealed from, with costs.

Contrary to the objectant's contention, the executors were entitled to commissions on the sale of the subject real property. An executor is entitled to receive a commission for all sums of money and all property received and paid out (see SCPA 2307 [1]; Matter of Mattis, 55 Misc.2d 511, 513 [1967]). Generally, commissions are not payable on real property unless the real property is sold or otherwise transferred (see Matter of Zahoudanis, 205 A.D.2d 547, 548 [1994]; Matter of Baxter [Gaynor], 196 A.D.2d 186, 190 [1994]; Matter of Passuello, 184 A.D.2d 108, 112 [1992]; Matter of Moody, 125 A.D.2d 673, 674 [1986]). Here, as the objectant correctly contends, the real property passed to the executors, as residuary beneficiaries under the will, by operation of law (see Matter of Seviroli, 31 A.D.3d 452, 454 [2006]). However, the vesting of title was subject to the executors' duty to ensure that all debts and obligations of the estates were met (see Matter of Ballesteros, 20 A.D.3d 414, 415 [2005]; Matter of Skelly, 284 A.D.2d 336, 336-337 [2001]). The Surrogate's Court properly determined that the sale of the real property was necessary in order to pay the objectant his elective share (see EPTL 5-1.1-A [a] [2]) and that, therefore, the executors effected the sale in their capacities as executors. Furthermore, the Surrogate's Court correctly determined that certain expenses associated with the sale were properly chargeable to the estate.

The Surrogate's Court bears the ultimate responsibility for deciding what constitutes a reasonable attorney's fee, and the evaluation of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the court (see Matter of Szkambara, 53 A.D.3d 502 [2008]; Matter of Gluck, 279 A.D.2d 575, 576 [2001]; Matter of Nicastro, 186 A.D.2d 805 [1992]). Here, the Surrogate Court's award of a $10,000 legal fee to the executors' attorneys was a provident exercise of its discretion.

The Surrogate's Court also properly determined that a joint bank account in the names of the objectant and the decedent was a testamentary substitute within the meaning of EPTL 5-1.1-A (b) (1) (D). Since there is a conclusive presumption that a decedent contributed half the funds in a bank account held jointly with the surviving spouse (see EPTL 5-1.1-A [b] [2]), the Surrogate's Court properly determined that the objectant's elective share should be reduced by that amount (see EPTL 5-1.1-A [a] [4]).

Contrary to the objectant's contention, the Surrogate's Court providently exercised its discretion in awarding him interest on his elective share from seven months after the issuance of letters testamentary (see Matter of Kasenetz, 196 Misc.2d 318 [2003]; EPTL 11-1.5 [d], [e]).

The objectant's remaining contention is improperly raised for the first time on appeal (see Matter of Rouson, 32 A.D.3d 956, 959 [2006]).


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