Rosh and Bramson Win Appeal on Appointment of Successor Trustee

McCarthy Fingar’s Surrogate’s Court Litigation lawyers represent clients in all phases of litigation on trusts and estates matters, including proceedings seeking the appointment or replacement of trustees of living or testamentary trusts. In Matter of Burrows, Robert H. Rosh and Howell Bramson, representing the preliminary executors of the decedent’s estate, won on summary judgment a proceeding in which their clients sought the appointment of a successor co-trustee of a multi-million dollar, living (grantor) trust (the “Trust”). On appeal, the Appellate Division, Fourth Judicial Department, unanimously affirmed the Surrogate’s Court decision and order granting our clients’ summary judgment motion. On their summary judgment motion, Rosh and Bramson established that the trust instrument required that the Trust be administered by two (2) trustees, but that, through deposition testimony and documentary evidence, the sole surviving co-trustee of the Trust was unfit to administer the Trust without the assistance of a co-trustee. In finding that the surviving co-trustee was unfit, the Surrogate’s Court found that the surviving co-trustee had failed to comply with various terms of the trust instrument, and had improperly delegated his fiduciary duties thereunder to another individual for years after the resignation of the original co-trustee of the Trust. The Surrogate’s Court consequently concluded that “[g]iven [the surviving co-trustee’s] less than adequate interest/ability to solely administer the Trust[,] together with the nature and language of the Trust, . . . two trustees (co-trustees) [were] necessary.” In granting our motion, the Surrogate’s Court further pointed out, and found, that the surviving co-trustee’s counsel’s argument that the proceeding was barred under the doctrine of res judicata, was without merit.

Kutzin is Co-Author of “New York Elder Law”

As of the January 2021 edition, Michael S. Kutzin, a member of various groups, including our Guardianship Practice,  Taxation and Trusts & Estates groups, became a co-author, along with Tara Anne Pleat, Esq., of the LexisNexis treatise, New York Elder Law.  The publication, which is one of the premier publications in the field, contains comprehensive analysis and practice guidance for trusts & estates, elder law and special needs attorneys practicing in New York. Some topics that are discussed include: planning for incapacity (property management & health care decisions); Medicare and long-term care insurance; Medicaid; supplemental needs trusts; guardianships; estate planning and wills; health care coverage and resources; financial planning; income and estate tax; and elder abuse.