## Facts

- Pauline Kinzler died leaving a will that divided her estate into three equal shares for her daughters: Gloria Zweibon, Louise Kinzler, and Beatrice Hornstein.
- Beatrice’s one-third share was to be held in a testamentary trust, with income payable to Beatrice and the remainder to Beatrice’s children.
- Pauline’s son-in-law, Bertram Zweibon, drafted the will and was appointed executor.
- Louise and Gloria were named cotrustees of the trust established for Beatrice.
- Bertram knew the daughters were hostile toward one another.
- After Pauline’s death, Bertram sold Pauline’s home to Louise, who was both a beneficiary and a cotrustee.
- Bertram refused to pay estate/trust income to Beatrice, the trust’s income beneficiary.
- From the home-sale proceeds, Bertram made a $50,000 cash distribution to his wife, Gloria, who was also a beneficiary.
- Bertram paid himself attorney’s fees from the estate without obtaining court approval.
- Beatrice and her children commenced a proceeding challenging Bertram’s conduct in administering the estate, including the home sale and the fee payments.
- The lower court concluded the home sale to Louise was tainted by conflict of interest and self-dealing, found the fee payments improper absent court approval, and limited the amount of attorney’s fees Bertram could receive.
- Bertram appealed.

## Issues

1. Whether the lower court properly found that the executor’s sale of the decedent’s home to a beneficiary/cotrustee was tainted by conflict of interest and self-dealing.
2. Whether the executor improperly paid himself attorney’s fees from estate funds without court approval, justifying relief directing repayment and/or limiting fees.
3. Whether the lower court properly exercised its discretion in limiting the executor-attorney’s requested compensation.

## Decision

- The Appellate Division, Second Department, affirmed the lower court’s order.
- The court upheld the determination that the sale of the estate home to Louise was affected by the executor’s conflict of interest and self-dealing.
- The court upheld relief based on the executor’s payment of his own attorney’s fees without prior court approval.
- The court upheld the limitation imposed on the executor-attorney’s fees.

## Legal Principles

- An executor is a fiduciary who must act with loyalty and avoid transactions in which the executor’s personal interests (or the interests of close family members) conflict with the interests of the estate and all beneficiaries.
- A fiduciary’s transfer of estate property to an interested party is subject to close judicial review; conflicted transactions may be set aside or result in surcharge or other remedies.
- In estate administration, attorney’s fees and fiduciary compensation are subject to court supervision; an executor-attorney who pays himself from estate assets without authorization risks disallowance, repayment, and a reduced fee award.
- Courts have discretion to fix and limit reasonable estate counsel fees based on the circumstances of the services performed and the fiduciary’s conduct.

## Conclusion

Matter of Kinzler affirmed a lower court’s determination that an executor-attorney engaged in conflicted conduct by selling the decedent’s home to a beneficiary who was also a trust cotrustee, by withholding income from the trust’s life beneficiary, and by paying himself attorney’s fees without court approval; the appellate court sustained the resulting relief, including limits on the executor-attorney’s fees.


Matter of Kinzler, 195 A.D.2d 464 (1993)