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Sunday, December 29, 2013

Probate part cannot disburse non probate assets

November 1, 2013

Submitted August 26, 2013 – Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. P-241-11.

Beth Marie Robinson, Executrix of the Estate of James L. Vincent, appeals from the January 5, 2012 and April 5, 2012 judgments approving a final accounting and denying her motion for reconsideration, respectively. We affirm substantially for the reasons enunciated by Patricia Del Bueno Cleary, J.S.C. in her well-reasoned oral opinions.
James L. Vincent died on June 3, 2005. His Last Will and Testament, executed on October 15, 1997, reads, in relevant part:
A. I direct that all my just debts (other than debts, if any, secured by mortgages of real estate or the assignment or pledge of life insurance policies), my funeral expenses, . . . and the costs of administering my estate be paid as soon as convenient or practical after my death.

B. My Executor, in his sole discretion, may pay from any domiciliary estate all or any portion of the costs of ancillary and similar proceedings in other jurisdictions.

The Monmouth County Surrogate's Office admitted the Will into probate on July 13, 2006, and letters testamentary were issued naming his daughter, Beth Marie Robinson, the Executrix. The Will provided that the residual estate was to be equally divided between his two daughters, Robinson and Tracie Renee Vincent. Shortly after her father's death, Vincent retained counsel. Robinson and Vincent have been bitterly at odds throughout the resolution of decedent's estate.
The estate was litigated in two courts. The first case involved a foreclosure action filed against the estate for collection on a home equity line of credit.1 After many proceedings to resolve the foreclosure action, a General Equity judge conducted a hearing on August 14, 2009, to schedule the closing date for the sale of the property before August 21, 2009.
Robinson retained Barry Slott, Esquire to represent the estate in the sale of the property. Slott held the $17,000 deposit in his attorney trust account. The record contains an undated letter from Slott to Robinson stating he was advancing Robinson $4000 and paying himself $13,000 for legal services rendered, from the escrowed funds. In a subsequent letter dated December 3, 2009, Slott wrote that he
enclose[d] [his] attorney trust account check, payable to the Estate, in the amount of $38,241.51, representing full and final disbursement of the proceeds of sale. [He] deducted [his] remaining fee of $2,389.00 from the escrow, and a copy of the bill, marked "Paid in Full" [was] enclosed as well.

The proceeds from the sale of the property were added to the estate.
In October 2010, Vincent filed a complaint to compel an accounting of the estate and removal of Robinson as Executrix. In November 2010, Judge Cleary ordered Robinson to show cause why judgment should not be entered requiring her to provide a formal accounting of the estate; removing her as Executrix of the estate; and enjoining her from dissipating the estate assets. In February 2011, the judge ordered Robinson to provide a formal accounting within sixty days or be replaced by Vincent as Executrix.
In July 2011, Robinson provided a document purporting to be the first and final accounting of the estate. According to her calculations, the estate had a negative balance of $32,263.17. In her submission, Robinson did not seek a commission, but rather sought executor's fees for reimbursement of her expenses in the amount of $57,844.34.
Vincent filed exceptions to the accounting. Among other things, she challenged the executor's fees, asserting that commissions are statutorily set at five percent of the corpus of the estate, and that based on Robinson's own calculation, she should only be entitled to $8,186.13. Next, Vincent challenged the attorney's fees assessed to the estate, namely $15,389 paid to Slott and $33,000 to "other legal professionals." She demanded Slott submit an affidavit, as required by Rule 4:88-4, for his services rendered in the real estate transaction. Robinson filed objections to the exceptions.
Judge Cleary conducted a hearing on December 6, 2011, at which time she heard testimony and argument from Robinson, who represented herself, and from Timothy M. McGinn, Esquire for Vincent. The court noted that in an October 28, 2011 letter, Mary Lou Ferchik, the Surrogate's Office accountant, disapproved the accounting, finding it incomplete due to insufficient proof of expenses.
The judge reported that on December 1 she received "some sort of bill" from Slott. McGinn objected to the admissibility of the document, as it was "not in affidavit form. It's not signed by the attorney. It's not typical attorney terminology. It's not itemized. There's no time associated with each entry." Robinson explained that in August 2009, the General Equity judge directed all attorneys involved in the real estate transaction, including Slott, to provide their legal fees for consideration at the real estate closing on August 19, 2009. She asserted that she has provided the Probate Court with a copy of the billing statement Slott had provided to the other judge. After some discussion, Judge Cleary found the submitted documentation insufficient and Robinson stated that she would submit a proper billing statement for Slott.
The court further considered the estate expenses. Robinson could not, however, adequately substantiate several of the expenses or demonstrate why she was entitled to the $4000 disbursement she had received from Slott. Robinson asserted that the General Equity judge permitted the advance payment to her, and assured the court that she would not have a problem getting information from that judge regarding the $4000. The court rejected Robinson's request for executor's fees, finding she had not provided proof of those expenses. The court, however, approved a statutorily permitted executor's commission.
The judge reconciled the accounting and established the corpus of the estate as $163,722.54 and Robinson's commission as $8,186.13. The court noted the settlement of the estate was long overdue, and Robinson had multiple opportunities to provide certifications and documentation to support the expenses. The court, however, reserved entering a final order and allowed Robinson ten days to submit a certification from Slott for his fees, and a copy of the order from the General Equity Court granting her the $4000 allowance from the estate. The court directed that if the additional documentation was not submitted "then [$15,389 and $4000] will be taken away from [Robinson's] part of the Estate[.]"
On January 4, 2012, the judge rendered her final decision and found that Robinson had neither provided the necessary certification of services from Slott, nor a copy of an order from the General Equity Court regarding the $4000 disbursement. Accordingly, the judge disallowed those expenses. The judge awarded McGinn counsel fees and required him to submit a certification of services. Lastly, the judge determined that the amount available for distribution from the estate was $53,166.92, with each sister entitled to one-half of the amount after the payment of McGinn's counsel fees.
Robinson filed a motion with the General Equity Court seeking an order confirming Slott's attorney's fees and her $4000 disbursement. At a February 17, 2012 hearing conducted by the same General Equity judge who had presided over these matters in 2009, Robinson explained that the Probate Court required proof of the expenses, which were incurred during the foreclosure and real estate matters. After discussion, the judge could not find any orders of record to support the asserted expenses, nor could the judge find any basis to reopen the foreclosure case to reconsider the expenses. In the end, the judge denied relief and agreed with Judge Cleary that Robinson needed a proper certification of services from Slott. The judge suggested that Robinson file a motion for reconsideration in the Probate Court to resolve this matter.
On April 5, 2012, Judge Cleary denied Robinson's motion for reconsideration, finding that she filed out of time. See Rule 4:49-2. (A motion for reconsideration shall be served no later than twenty days after the service of the judgment or order). The judge noted that she issued the order on January 5, 2012 and Robinson filed the motion for reconsideration on March 14, 2012. Additionally, Robinson did not request permission to file her motion out of time.
Robinson had been given numerous opportunities to file the required certification of services for Slott, yet failed to do so. She also failed to present a court order establishing that she was entitled to be paid $4000 from the estate. The judge therefore, concluded that Robinson failed to establish that the January 2012 ruling was erroneous in any respect.
This appeal followed. Robinson challenges the court's rejection of her requests for Slott's fees, her commission, and the award of counsel fees to McGinn. In addition, she requests this court compel Vincent to prove that decedent was her biological father, and if so, to compel Vincent to pay one-half of the estate expenses. Having carefully reviewed the record in light of Robinson's contentions on appeal, we are satisfied that her arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). The January 5, 2012 and April 5, 2012 orders are affirmed.


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