In response to a direction from the court in a decision issued on March 5, 2013,^[FN1] Tavel Clavin, as executor of the estate of Mildred Clavin, has filed an interim account, covering the period from February 21, 2012 through February 28, 2013. Objections to the account have been filed by Andrea Clavin and Ira Clavin.

The decedent died on November 4, 2011, survived by three children, Tavel, Andrea and Ira. The decedent nominated Tavel as the executor of her estate, and letters issued to him on February 21, 2012.^[FN2] The assets of the estate consist of decedent's home, where Andrea and Ira resided prior to decedent's death and continue to reside, the contents of the home, some jewelry [*2]and other personalty, and cash and savings bonds that were in the possession of the decedent's court-appointed property guardian.^[FN3]

Andrea and Ira, who are self-represented, have filed objections with the headings "Reply Affirmation in Support of My Affidavit of Opposition to the Citation in Surrogate Court" and "Reply Affidavit in Opposition to the Executor's Intermediate Accounting and Citation for Commissions Claimed as Owed to the Executor; A Motion to Show Cause to Have the Executor Removed and Replaced with an Administrator CTA." The objections are delineated and discussed below.

Counsel for the executor filed a reply affirmation in which he argues that this relatively simple administration has grown to be a heavily litigated matter due solely to Ira's and Andrea's unwillingness to cooperate with Tavel in his efforts to administer their mother's estate, particularly as it pertains to the sale of decedent's home, where Andrea and Ira continue to reside. Counsel cites the many extensive court proceedings and police involvement that became necessary simply for Tavel to gain access to the decedent's home to inventory and marshal her assets in his capacity as executor. Although Ira and Andrea object that the interim accounting does not include the personalty marshaled by the executor on March 19, 2013, counsel points out that the omission is due to the fact that the interim account was ordered by the court on March 5, 2013 and therefore ends on February 28, 2013, before Ira and Andrea gave Tavel access to decedent's home. Counsel for Tavel maintains that for procedural and substantive reasons, no valid objections have been raised.

The court has thoroughly reviewed, considered and analyzed the objections filed by Andrea and Ira against the executor's interim account, which are summarized and addressed below:

1. Objection to executor's commissions; the executor could waive commissions.

The executor may choose to waive commissions, but he is under no obligation to do so. Pursuant to SCPA 2307 (1), the court must allow an executor statutory commissions unless the court finds fault with the executor's performance of his or her duties (see, e.g. Matter of Palcic, NYLJ, May 18, 2001, at 21, col 1 [Sur Ct, New York County] [court reduced commissions due to misappropriation of funds]). Even if such a breach is proven, it is within the discretion of the Surrogate to determine whether commissions will be allowed or disallowed (Turano & Radigan, New York Estate Administration § 15.05 at 551 [2013 ed]).

The issue of commissions has been raised prematurely, as commissions are awarded on the final settlement of the executor's account (Turano & Radigan, New York Estate Administration § 15.05 at 550 [2013 ed]). At the same time, the court notes that to date, [*3]objectants have not raised any substantive reason for the court to deny commissions to Tavel. Although the objectants assert that Tavel has mismanaged estate assets, no evidence of mismanagement to support the denial of commissions has been presented to the court.

2. Objection that counsel for the executor does not represent the beneficiaries.

As counsel for the executor, counsel represents Tavel in his capacity as the executor. Counsel may not also represent the individual beneficiaries.

3. Objection that the executor is secretive, hostile, non-communicative, aloof and dictatorial.

This issue was raised previously, and the court responded by noting that while the executor is not required to sit down and confer with the beneficiaries, he is required to account. The court directed the executor to file an interim account, and he complied. The court expects the executor to file a final account when the estate administration has been completed.

4. Objection that the executor paid and continues to accumulate legal bills without accounting to the other two beneficiaries, greatly diminishing estate assets.

The executor has paid legal bills and continues to do so, but he has now provided an interim account to the other beneficiaries. A fiduciary may pay legal bills without court approval; the court, however, has the discretion to determine what constitutes reasonable compensation for legal services 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]).

Legal fees will be reviewed by the court in connection with the final account to be filed by the executor at the completion of the administration of the estate.

5. Objection to counsel's performance of tasks that the executor could have accomplished himself.

In support of this objection, Andrea cites fees charged by counsel for retrieving a check from decedent's property guardian, receiving and reviewing correspondence from the property guardian concerning decedent's health insurance, and preparing a letter requesting a refund. This issue will be considered as part of the court's review of counsel's legal fees in connection with the final account. If the court finds that the attorney performed executorial tasks, the court may direct that the attorney not be compensated for those tasks.

6. Objection to the the inventory of personal property, which was drafted and delivered to objectants at decedent's home at the time the inventory was taken, in that it was handwritten and fails to include all of the valuables taken into the executor's possession.

While there is no requirement that the inventory be typewritten or prepared on a computer, if objectants have specific questions concerning illegible items on the list, or specific items that they believe are missing, they may raise these questions with counsel for the executor. As noted above, the interim account does not include the inventory, which was completed subsequent to the closing date of the estate. If appropriate, specific objections concerning personalty for which the executor failed to account may be raised in connection with the final account to be filed by the executor.

7. Objection to the executor's failure to have the decedent's coins, silverware and jewelry [*4]appraised.

The court notes that this objection was raised less than three months after the executor was allowed to marshal these assets on March 19, 2013. However, if the executor has not already done so, the executor should arrange for the appraisal of these items within 45 days of the date of this decision or provide a written explanation to the court and the objectants why the appraisals have not been completed.

8. Objection to "threats" by the executor that Andrea and Ira will be evicted from the decedent's house because the executor requires liquid assets to pay the estate bills.

Decedent's will bequeaths decedent's home in equal shares to all three beneficiaries, Tavel, Andrea and Ira. The executor is authorized to sell decedent's home and distribute the proceeds among the beneficiaries. Tavel has advised the other beneficiaries of his intent to sell decedent's home; this does not constitute a threat.

9. Objectants seek removal of Tavel as the executor of the estate of Mildred Clavin and as the surviving alternate executor of the estate of Mortimer Clavin ^[FN4].

The estate of Mortimer Clavin is a separate proceeding which is not before the court at this time. Objectants may choose to bring a separate miscellaneous proceeding for the removal of Tavel as the executor of the estate of Mildred Clavin, but the court notes that objectants' papers filed to date include no grounds under SCPA 711 to justify Tavel's removal as executor.

11. Objection to Tavel's failure to stop an escheatment of AXA shares and dividends to New York State.

The objectants fail to support this assertion with any information or documents and the interim account does not reflect decedent's ownership of AXA shares. Objectants may raise this objection once the final account has been filed.

12. Objection to Tavel's refusal to grant Ira's requests (a) that money be set aside for perpetual care of their parents' gravesite and (b) that Ira be authorized to pursue a medical malpractice case on behalf of the estate.

Neither of these objections are valid in that Tavel has no obligation in his executorial capacity to pay for perpetual gravesite care, nor is he under any obligation to authorize Ira to pursue a medical malpractice case which Tavel decided not to pursue as executor.

The court acknowledges Tavel's efforts to administer his mother's estate, and the frustration of Ira and Andrea, who are unfamiliar with court procedure and very reluctant to move out of the decedent's home. At the same time, the court cannot ignore the objectants' continuing efforts to prevent Tavel from fulfilling his executorial responsibilities, particularly as they pertain to the marshaling of Mildred Clavin's personalty and the sale of her home. The record reflects that innumerable court conferences have been held, during which Tavel's attorney made repeated good faith offers to resolve this matter amicably with Andrea and Ira. Despite these efforts, the administration of this estate remains incomplete.

As noted above, the court will review legal fees in the context of the executor's final account, and the objectants will have the opportunity to file additional objections to the final [*5]account if they choose, but the final account can only be filed by the executor after the sale of decedent's home and the completion of the estate administration. When the final account is approved, the court will direct the executor to distribute the funds equally among the three beneficiaries and close the estate.

The interim account is approved; legal fees will be reviewed in the context of the final account.

If the executor has not already had the decedent's coins, silverware and jewelry appraised, he is directed to do so within 45 days of the date of this decision, or provide a written explanation to the court and the objectants why the appraisals have not been completed.

This constitutes the decision of the court.

Dated: August 6, 2013

Edward W. McCartyJudge of the

Surrogate's Court