On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-080-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2008
Before Judges Reisner, Sapp-Peterson and Alvarez.
Beverly Flowers, the former guardian of decedent Ronald M. Salzer and the former administratrix ad prosequendum of his estate, appeals from a Probate Part order entered April 30, 2007, awarding her $7,000 in termination commissions plus $585 in expenses, but denying her claim for additional commissions and counsel fees. Salzer's Estate has cross-appealed from the award of the termination commissions and expenses. We modify the judgment to $6000 in termination commissions plus expenses, and affirm as modified.
These are the most pertinent facts. On August 19, 2003, decedent Ronald M. Salzer (Salzer) was critically injured in an automobile accident when, as a pedestrian walking in New York City, he was struck by a motor vehicle owned and operated by Herwin M. Abel. Salzer was placed on life support and never regained consciousness.
At the time of the accident, Salzer, a disbarred New Jersey attorney who had served four years in prison in the late 1990s for misappropriation of his clients' funds, was divorced, had no children, and was estranged for over ten years from his two brothers. Aside from his brothers, Salzer had no living relatives. After his release from prison, Salzer moved into the home of Beverly Milgram Flowers, a semi-retired attorney whom Salzer had known for over two decades. Salzer resided with Flowers and her family from some time shortly after his release from prison until the accident on August 19, 2003.
On September 11, 2003, Flowers applied to become Salzer's guardian. The application was opposed by Salzer's ex-wife, Janet Salzer, who submitted a cross-complaint for guardianship. The Probate judge appointed a guardian ad litem, who recommended that Flowers be appointed Salzer's guardian, based on her longstanding friendship with him and Janet's lack of contact with Salzer in the preceding four years. On November 24, 2003, the court appointed Flowers as Salzer's guardian.
On December 23, 2003, Flowers filed a complaint for personal injury on Salzer's behalf against Abel. Litigation proceeded, and a $300,000 settlement was reached between the parties.*fn1 Flowers confirmed the settlement by signing a release on February 12, 2004. Two days later, on February 14, 2004, Salzer died as a result of his injuries.
Since the guardianship terminated with Salzer's death and Abel's insurance company had not yet forwarded the settlement check, Flowers moved to be appointed administratrix ad prosequendum on behalf of Salzer's estate, pending the appointment of an executor. On April 7, 2004, the trial court granted the motion, temporarily appointing Flowers "Administratrix ad Prosequendum of the Estate of Ronald M. Salzer, until a complaint and permanent appointment of administration of the estate is made."*fn2
Salzer died testate; however, the will in effect at the time of his death had been drafted before his divorce from Janet. Thus, although Janet was named as the sole residual beneficiary and Executrix of the will, she was disqualified by statute from taking anything under the will or from serving as Executrix. Instead, Marilyn Aden, Janet's sister and the alternate Executrix named under the will, was appointed to serve in Janet's stead. Aden received letters testamentary from the Bergen County Surrogate on October 4, 2004.
By letter dated October 31, 2005, Flowers sent a "revised final bill" to Elizabeth M. Haag, Esq., the Estate's attorney, seeking a six percent "guardian's commission" of $21,457, plus $585 in itemized expenses incurred in filing the guardianship and related costs. Haag declined to pay the commission, primarily because the estate was likely to be insolvent, and suggested instead that Flowers file an application with the court.
In February 2006, Aden filed a Complaint for Insolvency, along with an Order to Show Cause requiring "that all creditors, . . . and others said to be the persons in interest herein, show cause . . . why final judgment should not be rendered directing that the estate of said Ronald M. Salzer be adjudged insolvent." The reason for the insolvency appeared to be federal and state tax obligations in the amount of $676,109.32 and $86,796.80, respectively, which accounted for more than 80% of the approximately $900,000 in claims outstanding against the estate at the time of Salzer's death. The insolvency petition listed Flowers as a person interested in the estate but not as a creditor.
After the petition was filed, Flowers filed a claim for commissions for her work in bringing in $350,000 in settlement monies, which constituted virtually all of the Estate's assets. Consistent with her earlier letter to Haag, Flowers requested a total of $22,042: an income commission of $21,457, plus $585 in expenses. On April 7, 2006, the Probate judge entered a Judgment of Insolvency, declaring Flowers' commission claim to be "unsecured and subordinate to the ...