Matter of Estate of Neumann

DECISION and ORDER   On the record, at the call of a special calendar on August 30, 2019, the court granted the petition of Belinda Neumann Donnelly to the extent of authorizing a $500,000 advance distribution¹ to her, pursuant to SCPA 2102(5),² from the estate of her mother, decedent Dolores Ormandy Neumann.³ Decedent’s other children, Melissa Neumann and Kristina Neumann, joined by their father, Hubert Neumann, had opposed the application on various grounds. None, however, had merit. A prior motion by Melissa⁴ for an order dismissing this petition was denied by this court in a decision dated August 7, 2019, which held that the arithmetic requirements of SCPA 2102(5) had been satisfied (Matter of Neumann, NYLJ, Aug. 12, 2019, at 18, col 3 [Sur Ct, NY County]). As to the other requirement for relief, i.e., petitioner’s need, respondents did not refute the allegations that Belinda and her family had been ousted from their long-term residence, which they had previously enjoyed rent-free, and that a certain trust for which Hubert serves as trustee had stopped making payments for the tuition of Belinda’s children. Indeed, respondents confirmed such allegations.⁵ As a result, petitioner established need within the meaning of the statute because such need finds its “reference [in] the lifestyle [petitioner] previously enjoyed” (Matter of Goldman, 150 AD2d 267, 268 [1st Dept 1989]), a standard that has long been applied in New York (see Lockwood v. Lockwood, 3 Redf 330, 332 [Sur Ct, Westchester County 1878]). Respondents contend that petitioner’s other assets and the other assets of her children, specifically two trusts established by Hubert for the benefit of Belinda’s two sons⁶ (no similar trust has been established for the benefit of her daughter) should be the subject of discovery and should be used or exhausted first, but that is also not within the contemplation of the statute. Instead, one seeking an advance need not “be forced to liquidate her assets” in order to maintain the lifestyle she previously enjoyed (Goldman, 150 AD2d at 268). In light of respondents’ failure to refute the allegations of the ouster of Belinda’s family from their rent-free home and the elimination of significant tuition payments for the benefit of her three children, they have not established grounds for further discovery or a hearing as to petitioner’s or her family’s need.⁷ Respondents’ other arguments require little discussion. Melissa’s assertion that the complete picture of the assets available in the estate is unclear — this in light of a pending IRS audit and possible other claims and expenses — provides no basis upon which to deny the petition. First, the arithmetic requirement of section 2102(5) safeguards against this court’s advancing excessive amounts, as explained in the court’s decision resolving the prior motion to dismiss. Second, as Goldman makes clear, an advance can be authorized even when the status of the person as a beneficiary is unclear, because a repayment bond can be imposed (Goldman, 150 AD2d at 268, citing Matter of Milbank, 49 AD2d 848 [1st Dept 1975]). Here, although Belinda’s status as beneficiary is not controverted, to allay any possible concerns as to an excessive advance, the court, in the exercise of discretion, will require that petitioner post a repayment bond in the amount of the advance (see SCPA 2101 [4]). Finally, the defense raised in the respective answers of Hubert, Melissa and Kristina, that there should be an interim accounting by Belinda before an advance is awarded, is supported by no authority. The need for an accounting presents an entirely separate issue. In this regard, it should be noted that the court denied Kristina’s petition to compel an interim account from Belinda as preliminary executor, when that matter was returnable before the court on August 21, 2019. Accordingly, under all the circumstances presented, including the substantial size of the estate, the court granted the petition to the extent of authorizing a $500,000 advance to Belinda Neumann Donnelly from the estate of Dolores Ormandy Neumann upon her posting a repayment bond in that amount. This decision, together with the transcript of the August 30, 2019 proceedings, constitutes the order of the court. Dated: August 30, 2019