AMENDED DECISION and ORDER The decision dated July 17, 2018, issued by this court in this proceeding is vacated and the following decision is issued in its place.Charles Reich as preliminary executor of the estate of his mother, Lilian Reich, has petitioned for an order directing his sister, Elizabeth Brimberg, as preliminary executor of the estate of their father, decedent Seymour Reich, to make an advance payment of $2.5 million, on account of Lilian’s elective share of decedent’s estate (see SCPA 2102 [5]). The requested funds are needed, according to petitioner, in order to pay a federal estate tax of $8 million, due on July 20, 2018, on Lilian’s largely illiquid estate. Petitioner has agreed to post a full refunding bond to secure the $2.5 million. Respondent opposes the petition. Both parties have asked the court to determine the petition based on the present record.FactsDecedent died on July 22, 2016, survived by his spouse, Lilian, and their two children, Charles and Elizabeth, leaving a $35 million probate estate. Decedent’s purported will contains a single dispositive provision: decedent’s entire probate estate is to be distributed to the trustee of a revocable trust, known as the “Seymour Reich 2016 Revocable Trust,” created by decedent on the same date as the purported will. Under the terms of the trust instrument, Lilian is to receive all tangible personal property, outright, and Lilian is the primary beneficiary of two continuing trusts.On September 26, 2016, Lilian filed a notice of the exercise of her spousal right of election. Consistent with such notice, Elizabeth, as preliminary executor of decedent’s will, claimed a $2.9 million federal estate tax deduction for Lilian’s elective share but, nevertheless, reported that such amount was uncertain, as the validity of Lilian’s exercise of her spousal right of election was in dispute.1On October 20, 2016, Lilian died. Her $33.3 million taxable estate is composed of: (1) a co-operative apartment, which decedent and Lilian had owned jointly, valued by petitioner to be “at least” $18.5 million, (2) $8 million in mutual funds held in a revocable trust created by Lilian, (3) $365,000 of real property, (2) checking accounts totaling $125,000, (4) miscellaneous assets, including tangible personal property, of $220,000, and (5) assets that passed by operation of law to Charles, individually, valued at $6 million.2 The main asset of Lilian’s estate — the co-operative apartment — is illiquid.3Respondent’s ContentionsElizabeth as preliminary executor of decedent’s estate concedes that petitioner’s request satisfies the requirements of SCPA 2102 (5), but she contests petitioner’s need for the requested advance.Respondent’s arguments about petitioner’s “need” seem to be made in the alternative (although respondent does not frame them that way). She seems to argue that: either Charles, individually, must demonstrate a personal need for funds, and he has not done so; or else Charles as fiduciary must demonstrate a need, and the need for funds to meet an estate tax obligation does not constitute one of the “needs” referenced in SCPA 2102 (5).4Further, respondent asserts that Lilian’s exercise of her spousal right of election was invalid because Lilian lacked the requisite capacity at the time she executed her notice of election and because the notice was the product of duress and undue influence exerted by Charles. Nevertheless, respondent contends: “If Decedent’s estate had not claimed a marital deduction [on the IRS Form 706], it would have paid more estate taxes than might legitimately be payable and would run the risk of not getting a refund of the overpayment.”When asked in open court during the May 18, 2018 proceeding in this case why the imposition of a refunding bond would not alleviate Elizabeth’s concerns, her counsel replied merely that the granting of the petition “would affect the status quo.” Here, however, the remedy sought — an order directing respondent to take affirmative action — is pursuant to a statute, SCPA 2102 (5), that authorizes a change in the status quo.AnalysisThe Appellate Division has made clear that a Surrogate has discretion to authorize an advance payment against a claimed beneficial interest in an estate — even when the validity of that claim is disputed — provided the claimant is willing to post a full refunding bond (Matter of Goldman, 150 AD2d 267, 268 [1st Dept 1989]).5 In addition, the Appellate Division has recognized an “inability to meet such obligations as taxes owed” as one of the “needs” referenced in SCPA 2102 (5) (id.).Charles has petitioned in his capacity as fiduciary of Lilian’s estate for funds necessary to satisfy that estate’s tax obligations. Accordingly, Charles, individually, need not demonstrate a personal inability to satisfy the total tax imposed on Lilian’s estate.6The question of the entitlement of the fiduciary of Lilian’s estate to a $2.5 million payment from the fiduciary of decedent’s estate has yet to be resolved. The imposition of a full refunding bond, however, will protect decedent’s estate from any prejudice to the extent of any ultimate determination that Lilian’s estate is not so entitled.ConclusionThe petition is granted. Elizabeth Brimberg as preliminary executor of the estate of Seymour Reich is directed to make an advance payment to Charles Reich as preliminary executor of the estate of Lilian Reich — upon his posting a full refunding bond — in the amount of $2.5 million.This decision, together with a transcript of the May 18, 2018 proceedings, constitutes the order of the court.Dated: July 18, 2018
