DECISION/ORDER The court has before it the conclusion of four separate accounting proceedings in two revocable inter vivos trusts, as shown in the above captions. As can be seen from the captions, the co-trustees of each of the trusts filed separate accountings. As discussed more fully below, the only outstanding issues to be decided by the court are the allowances to be awarded to the two guardians ad litem appointed in these proceedings and whether any portion of the allowances should be apportioned against a party to these proceedings. Jurisdiction has been obtained over all persons listed in the petition as necessary parties. A guardian ad litem was appointed in all proceedings to represent the interests of Elise C. Alsop, who now lacks capacity, and another guardian ad litem was appointed in all proceedings to represent certain contingent remainder beneficiaries of the trust who were infants or unborn at the time of appointment.Jane Alsop Johnson (“Johnson”) filed objections to the accountings filed by her co-trustee, Brooke A. Boland (“Boland”), and Boland filed objections to the accountings filed by Johnson. Objections to all accounting were also filed Elise Sweet (“Sweet”) and both guardians ad litem.As discussed more fully below, after years of litigation the parties have settled their difference by the filing of a written stipulation of settlement in which the objections of Sweet in all proceedings were withdrawn, with the issue of the allowances to be awarded the guardians ad litem left to the court for determination. Thereafter, the guardians ad litem also withdrew their objections. The guardians ad litem have filed their respective affirmations of legal services.BackgroundReese and Elise were married until Reese’s death on December 19, 2006. They had five children together: Johnson, Boland, Sweet, Reese Penn Alsop (“Penn”), and Ann Chambers (“Chambers”), who have not appeared herein.The Reese F. Alsop Revocable Trust Dated October 15, 2002 (the “Reese Trust”) was created, as an “amended and restated” trust, on or about October 15, 2002 by Reese F. Alsop (“Reese”) to provide for him during his life, with any amounts remaining after his death to be distributed for the benefit of his children and his spouse, Elise. At the time of its creation, Reese and his daughter Brooke were co-trustees. This trust was amended on February 23, 2006, to, inter alia, direct the distribution of gifts to decedent’s children equally upon Reese’s death, even if survived by Elise. Reese died on December 19, 2006, at which time Johnson became successor co-trustee.The Elise C. Alsop Revocable Trust Dated July 10, 2003 (the “Elise Trust”) was created on or about July 10, 2003 by Elise to provide for her during her life, with the remainder on her death to be held for the benefit of Reese, had he survived, or upon his death to be paid immediately to Elise’s issue, per stirpes. At the time of its creation, Elise and Johnson were co-trustees. At some point, the date of which is in dispute, Elise became incapacitated, at which time Boland became successor co-trustee.The record reflects that Elise suffers from Alzheimer’s disease; there is no question that she now lacks capacity, hence the appointment of the guardian ad litem to represent her in the underlying proceedings.Sweet and Penn filed a “Petition to Require Fiduciary to Supply Information Pursuant to SCPA 2102, 1509″ on March 10, 2008, concerning the Reese Trust. The respondents in that proceeding were Boland and Johnson. That proceeding resulted in an Order to Account dated November 14, 2008, directing Boland and Johnson to account, as trustees of the Reese Trust and as trustees of the Elise Trust, within ten days.Thereafter, on August 21, 2009, Sweet and Penn filed an order to show cause to punish respondents Boland and Johnson for contempt for their failure to timely account. A stipulation was thereafter entered into, providing respondents with additional time to account.On October 19, 2009, Boland and Johnson each filed their separate accounts as co-trustee of the Reese Trust, and on October 21, 2009, Boland and Johnson each filed their separate accounts as co-trustees of the Elise Trusts.The record reflects that a central issue in the underlying accounting proceedings is the validity of certain transfers of Elise’s interest in real property. Specifically, on or about July 10, 2003, Elise executed a deed by which she transferred her one-half interest in her residence, real property located at 33 Fort Hill Drive, Lloyd Harbor, Suffolk County, New York to the Elise Trust. This property was subsequently transferred, on February 16, 2006, by Elise and Johnson, as co-trustees of the Elise Trust, back to Elise. Elise’s one-half interest in her residence was subsequently conveyed to the Reese Trust. In light of the agreement Johnson and Boland made with Anne Chambers on February 5, 2007, for Chambers to care for Elise, it is likely that Elise lacked capacity at the time of the transfer.Objectant Sweet has contended that Elise lacked the mental capacity to understand the transactions involved, especially the 2006 transfers. Although this transfer, in light of the stipulation of settlement, is no longer in issue, it is relevant to the allocation of the allowances to be awarded herein. The record reflects that Johnson, in her accounting petitions, lists Elise as follows: “Elise C. Alsop is: Incompetent/Incapacitated. Facts regarding disability: Alzheimer’s Disease.” In the accountings filed by Boland, Boland lists Elise as under a disability, and “Opinion of Richard B. Schwarz, M.D., F.A.C.P., that ‘…she no longer has capacity to care for herself or make her own decisions…’”The two trusts have identical contingent remaindermen-the grantor’s children (or more remote issue, if any child has predeceased the grantor).In light of the fact that the trusts have identical residuary beneficiaries and the transfer of assets between the trusts, the court will consider both trusts as one unified pool for the payment of the allowances awarded the guardians ad litem.Additional background transactions, of extreme importance to the determination herein, are distributions made by Johnson during the pendency of these proceedings. On or about June 30, 2010, at a time when all of the accountings were hotly contested and it was clear that all of the assets of both trusts should be retained for the resolution of the underlying issues, Johnson made distributions from the Reese Trust of $40,000.00 to herself and each of her siblings, in the aggregate amount of $200,000.00, rendering that trust virtually insolvent.Instant ProceedingAs noted above, the only outstanding issue is the awarding of allowances to the guardians ad litem, and the allocation thereof.Counsel for Johnson argues that the length and expense of these contested proceedings are the result fo overzealousness on the part of Sweet, and the guardian ad litem allowances should therefor be assessed against her. This is an over-broad and simplistic view of what has transpired herein. The objections were not without merit (for example, on October 5, 2006, Jane apparently bought a new Volvo, at an expense of approximately $28,500, which although it may have been titled in Elise’s name, was apparently used exclusively by Johnson). There were claims that other expenses, in far greater amounts, for Elise’s care, were either excessive or redundant. Johnson, more than any other party, prolonged the litigation by her behavior, counsel changes, and failure to document trust transactions.In addition, from nearly the outset of the proceeding, both of the guardians ad litem, who in addition to their expertise in Surrogate’s Court matters are experienced elder law practitioners, suggested that Johnson seek to obtain Medicaid benefits for Elise. The court notes, and the record reflects, that Johnson, who in addition to being trustee of both trusts, holds a Power of Attorney and Health Care Proxy from her mother. Since Elise resides with Chambers in New Hampshire, the guardians ad litem suggested she retain counsel in New Hampshire familiar with elder law and Medicaid planning to reduce Elise’s dependence on her trust. Apparently, this has never been done. Thus, the assets of the Elise Trust may have been depleted more than necessary due to Johnson’s failure to take the appropriate steps to ensure Elise was receiving all of the government benefits available to her.DiscussionThe court has reviewed the affidavits of legal services, as updated, from the two guardians ad litem, and finds that all services rendered were reasonable and necessary. Richard A. Weinblatt, Esq., provided a total of ninety-nine and seven-tenths (99.70) hours of services to his ward for which, at his normal hourly rate of four hundred dollars, he would have charged thirty-nine thousand eight hundred and eighty dollars ($39,880.00)1. Kurt P. Widmaier, Esq., provided a total of eighty-one and forty-one one-hundredths hours (81.41) of services to his wards for which, at his normal hourly rate of four hundred dollars, he would have charged thirty-two thousand five hundred and sixty-four dollars ($32,564.00).The services in this proceeding were invaluable to bringing this matter to a final resolution. Having said this, where, as here, the funds are limited, the guardians ad litem unfortunately cannot always be compensated at their normal hourly rates. The court notes that, at the onset of these proceedings, the funds were not nearly so limited. As shown in the accountings filed by Johnson, the aggregate principal and income of the Reese Trust was $1,290,047.60 and the Elise Trust was $1,362,318.81. (The accounting provided by Boland in the Reese Trust is virtually identical; Boland filed a “zero” accounting for the Elise Trust, claiming she never actually acted as trustee.) When the accountings were filed, there were assets on hand of $506,106.52 in the Elise Trust and $424,573.75 in the Reese Trust.It is unclear to the court what amounts, if any, currently remain in the trusts. In the affirmation filed in this matter by counsel for Johnson, counsel stated that there was only $13,000.00 in the Elise Trust. In light, as discussed above, of the transfer of the house from the Elise Trust to the Reese Trust and the unity of remainder beneficiaries of the two trusts, the allowances of the guardians ad litem awarded herein shall be paid proportionally (as between the guardians ad litem, i.e., 55.05 percent of such funds to Richard A. Weinblatt, Esq., and 44.95 percent to Kurt P. Widmaier, Esq.) to the guardians ad litem first from the Elise Trust and then, to the extent of the assets therein, proportionally from the Reese Trust.To the extent the assets of these trusts are sufficient to pay the amounts awarded herein in full, the shortfall is to be paid to the guardians ad litem by Jane Alsop Johnson, personally, in light of her improvident payment of approximately two hundred thousand dollars to the beneficiaries of the Reese Trust during the pendency of the litigation, leaving the trust assets insufficient to cover all trust expenses. Jane is free to seek reimbursement, proportionally, from trust beneficiaries for any amounts she personally pays to the guardians ad litem.ConclusionAccordingly, it isORDERED, that Richard A. Weinblatt, Esq., is hereby awarded an aggregate allowance from the Elise C. Alsop Revocable Living Trust and the Reese F. Alsop Revocable Living Trust of $24,925.00; and it is furtherORDERED, that Kurt P. Widmaier, Esq., is hereby awarded an aggregate allowance from the Elise C. Alsop Revocable Living Trust and the Reese F. Alsop Revocable Living Trust of $20,352.50; and it is furtherORDERED, that Jane Alsop Johnson, as trustee, is hereby directed to pay 55.05 percent of the funds remaining in the Elise C. Alsop Revocable Living Trust to Richard A. Weinblatt, Esq., in partial satisfaction of the allowance awarded herein; and is furtherORDERED, that Jane Alsop Johnson, as trustee, is hereby directed to pay 44.95 percent of the funds remaining in the Elise C. Alsop Revocable Living Trust to Kurt P. Widmaier, Esq., in partial satisfaction of the allowance awarded herein; and is furtherORDERED, that Jane Alsop Johnson, as trustee, is hereby directed to pay 55.05 percent of the funds remaining in the Reese F. Alsop Revocable Living Trust to Richard A. Weinblatt, Esq., up to the balance of the full amount of the allowance awarded herein; and is furtherORDERED, that Jane Alsop Johnson, as trustee, is hereby directed to pay 44.95 percent-of the funds remaining in the Reese F. Alsop Revocable Living Trust to Kurt P. Widmaier, Esq., up to the balance of the full amount of the allowance awarded herein; and is furtherORDERED, that the guardians ad litem are hereby each directed to file an affidavit within thirty days of this decision and order advising the court of the amounts, if any, they have received from the trusts and the balances unpaid; and it is furtherORDERED, that Jane Alsop Johnson, as trustee of each trust, is directed to file with the court within thirty days of this decision and order proof of the payments made from the trusts to the guardians ad litem; and it is furtherORDERED, that thirty days after this decision and order, the guardians ad litem will be entitled to a transcript from the Surrogate’s Court of any amounts awarded herein which have not been paid by Jane Alsop Johnson, as trustee, against Jane Alsop Johnson, personally; and it is furtherORDERED, that Jane Alsop Johnson may seek reimbursement, on a proportional basis (i.e., twenty percent each), from herself and her siblings, as beneficiaries of the Reese trust, in light of the improvident distribution of funds made by her on or about June 30, 2010; and it is furtherORDERED, that, in light of the stipulation of settlement filed with the court, and subject to the terms of the filed stipulation, the petitions for judicial settlement of the accounts and all remaining incidental relief sought therein, as modified by the stipulation and this decision and order, are granted.Settle decrees on notice.
