Surrogate Peter Kelly

A proceeding to allocate and distribute proceeds of settled underlying claims was set down for a hearing as a compromise order was not in compliance with Estates Powers and Trust Law §5-4.6. The court noted that at the hearing petitioner administrator did not serve all necessary parties as, contrary to assertions in the petitions, decedent was survived by more than two distributees. The court also stated the papers submitted contained “one of the most consistent errors exhibited in” §5-4.6 compromise applications—the omission to abide by statutory requirements that a guardian ad litem be appointed for an incapacitated distributee. Further, the court noted the more egregious error was that the application did not contain proof the issue was even considered. Therefore, the court concluded, given the jurisdictional deficiencies—that a guardian ad litem was not appointed before entry of the underlying order—and that counsel was still the attorney for the fiduciary in a proceeding to judicially settle her account pending in the court, counsel was ordered to return all counsel fees previously paid to the escrow account established. Also, administrator was directed to amend her petition and accounting to include all necessary parties.