Submitted for review is an accounting filed by the Public Administrator in the estate of Winifred Ida Frisby. The Public Administrator also seeks approval of commissions, attorneys' fees, fees of the guardian ad litem, accountant's fees and authorization to distribute the net estate to the New York State Comptroller for the benefit of the decedent's unknown distributees.

The decedent, Winifred Ida Frisby, died a resident of Nassau County on November 25, 2002. Letters of administration issued to the Public Administrator on March 30, 2006 and this accounting is the first and final accounting. A guardian ad litem was appointed to represent missing and unknown distributees. She filed her report and consents to the relief requested. The summary statement show charges to the accounting party of $62,271.98 and credits in the total amount of $15,750.38.

With respect to the issue of attorney's fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate (Matter

of Stortecky v Mazzone, 85 NY2d 518 [1995]; Matter of Vitole, 215 AD2d 765 [2d Dept 1995]; Matter of Phelan, 173 AD2d 621, 622 [2d Dept 1991]). While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily" (Matter of Brehm, 37 AD2d 95, 97 [4th Dept 1971]; see Matter of Wilhelm, 88 AD2d 6, 11-12 [4th Dept 1982]).

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent (Matter of Kelly, 187 AD2d 718 [2d Dept 1992]); the complexity of the questions involved (Matter of Coughlin, 221 AD2d 676 [3d Dept 1995]); the nature of the services provided (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]); the amount of litigation required (Matter of Sabatino, 66 AD2d 937 [3d Dept 1978]); the amounts involved and the benefit resulting from the execution of such services (Matter of Shalman, 68 AD2d 940 [3d Dept 1979]); the lawyer's experience and reputation (Matter of Brehm, 37 AD2d 95 [4th Dept 1971]); and the customary fee charged by the Bar for similar services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]; Matter of Freeman, 34 NY2d 1 [1974]). In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another, but must strike a balance by considering all of the elements set forth in Matter of Potts [*2](123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]), and as re-enunciated in Matter of Freeman (34 NY2d 1 [1974]) (see Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]). Also, the legal fee must bear a reasonable relationship to the size of the estate (Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]; Martin v Phipps, 21 AD2d 646 [1st Dept 1964], affd 16 NY2d 594 [1965]). A sizeable estate permits adequatecompensation, but nothing beyond that (Martin v Phipps, 21 AD2d 646 [1st Dept 1964], affd 16 NY2d 594 [1965]; Matter of Reede, NYLJ, Oct. 28, 1991, at 37, col 2 [Sur Ct, Nassau County]; Matter of Yancey, NYLJ, Feb. 18, 1993, at 28, col 1 [Sur Ct, Westchester County]). Moreover, the size of the estate can operate as a limitation on the fees payable (Matter of McCranor, 176 AD2d 1026 [3d Dept 1991]; Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]), without constituting an adverse reflection on the services provided.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]; see e.g. Matter of Spatt, 32 NY2d 778 [1973]). Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]; Matter of Phelan, 173 AD2d 621 [2d Dept 1991]).

In this case, there were two different attorneys employed by the Public Administrator. Each has submitted an affirmation of legal services and each application will be treated separately. The original attorney supplied the court with an affidavit of legal services and it shows that the attorney rendered more than one hundred and nineteen (119) hours of legal services of a partner, associate and paralegal at various hourly rates. The original attorney for the Public Adminstrator performed the following services: reviewed files; prepared discovery notices; prepared for and conducted an examination of the attesting witness pursuant to SCPA 1404 ^[FN1]; entered into a stipulation of settlement prepared and filed the petition for letters of administration; obtained the fiduciary bond; reviewed the decedent's income tax transcripts; identified and collected assets; reviewed public records to try and determine the decedent's distributees; prepared an affidavit of heirship; prepared the final account; and engaged in multiple conversations and conferences with the employees of the Surrogates's Court and the Public Administrator's office. The attorney requests that the court set the fee in a reduced amount of $12,252.50 all of which has been paid. Under the circumstances, the court fixes the fee of Brosnan & Hegler, original counsel for the Public Administrator, in the requested amount of $12,252.50.

The Public Adminstrator also employed a subsequent law firm. The attorney filed an affirmation of legal services in which he affirms that in order to finalize the proceeding, he will have to perform the following services: review file; communicate with guardian ad litem for unknown heirs; review decisions; prepare decree judicially settling account; prepare the closing of the estate; and retrieve relevant file information for the Public Administrator annual reporting requirements to the Surrogate's Court. The attorney anticipates that he will require six hours of [*3]paralegal time and 8 hours of attorney time to complete this matter. As some of the items that the attorney cited will not have to be performed (communicating with guardian ad litem for unknown heirs as the balance is going to be deposited with the Comptroller's office) and some is not compensable (retrieving file information for the annual reporting requirements), and due to the small size of the estate, the court fixes the fee of subsequent counsel, Mahon, Mahon, Kerins & O'Brien in the amount of $3,500.00.

The guardian ad litem filed an affirmation of services in which she avers that she spent 7.5 hours on this matter. Specifically, the guardian ad litem performed the following services: review of order of appointment; travel to Surrogate's Court to review file and sign consent; correspondence to attorney for petitioner; reviewed accounting; prepared report; requested further documentation; and completed the report. In light of the small size of the estate and the factors enumerated above, the court sets the fee of the guardian ad litem in the amount of $2,500.00.

The accountant filed an affidavit of tax services in which she avers that she has been paid $400.00 for the preparation of tax returns and will have to file a final return, the fee for which she estimates will amount to $575.00. The use of an accountant in this case appears to be reasonable. Therefore, the fee of the accountant in the amount of $975.00 is approved.

The commission of the Public Administrator is approved, subject to audit. The commissions and expenses of office are allowed and the Public Administrator is directed to distribute the balance to the New York State Office of the Comptroller.

Settle decree.

Dated: June 15, 2012

EDWARD W. McCARTY III

Judge of the

Surrogate's Court