In re Estate of Braasch

• Decision Date: 09 June 2016
• Citation: 140 A.D.3d 1341,33 N.Y.S.3d 541,2016 N.Y. Slip Op. 04480
• Parties: In the Matter of the ESTATE OF Marianne C. BRAASCH, Deceased. Melissa Smith–Humm et al., Respondents; Hans Heinrich Braasch, Individually and Executor of the Estate of Marianne C. Braasch, Deceased, and as Trustee of the Marianne C. Braasch Living Trust U/A 4/11/2005, Amended 10/14/08, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1341
33 N.Y.S.3d 541
2016 N.Y. Slip Op. 04480

In the Matter of the ESTATE OF Marianne C. BRAASCH, Deceased.

Melissa Smith–Humm et al., Respondents;

Hans Heinrich Braasch, Individually and Executor of the Estate of Marianne C. Braasch, Deceased, and as Trustee of the Marianne C. Braasch Living Trust U/A 4/11/2005, Amended 10/14/08, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 9, 2016.

33 N.Y.S.3d 542

Law Offices of Schur & Rose, Mayfield (Ronald R. Schur of counsel), for appellant.

Assaf & Siegal, PLLC, Albany (Michael D. Assaf of counsel), for respondents.

Before: McCARTHY, J.P., EGAN Jr., ROSE, LYNCH and AARONS, JJ.

LYNCH, J.

140 A.D.3d 1341

Appeal from a judgment of the Surrogate's Court of Otsego County (Lambert, S.), entered September 23, 2014, which, among other things, granted petitioners' application, in a proceeding pursuant to SCPA 711, to, among other things, impose surcharges upon respondent.

Marianne C. Braasch (hereinafter decedent) died testate in January 2009 survived by respondent, her brother, and petitioners—her sister, Hannelore Smith, and Smith's three children. Decedent had created an inter vivos trust funded with certain real and personal property, including several qualified retirement plans. Petitioners were the beneficiaries of the retirement plans in the trust. At the time of decedent's death, decedent, respondent and Smith each owned a one-third share of rental property located in Germany (hereinafter the German property). Decedent's will provided, among other things, that the German property should be distributed to petitioners in equal shares and that the residue of her estate should go to the trust.

In March 2010, respondent was granted letters testamentary, appointing him executor of decedent's estate/trust. In May 2011, respondent rendered an accounting to Surrogate's Court as both executor and trustee, and petitioners filed objections, claiming that the accounting was deficient and needed to be examined closely due to respondent's self-interest and alleged breaches of his fiduciary duties. In December 2012, petitioners commenced this proceeding pursuant to SCPA 711 seeking to remove respondent as trustee and executor and to impose a surcharge upon him for, among other things, the estate's share of the income from the German property,

33 N.Y.S.3d 543

the income taxes

140 A.D.3d 1342

incurred by petitioners due to certain distributions from the trust and certain counsel fees. Following a nonjury trial, during which respondent consented to his removal as both trustee and executor and admitted the accounting was incomplete, Surrogate's Court rejected respondent's accounting and imposed surcharges on him. Respondent now appeals, challenging only the surcharges.

The relevant facts in this proceeding are not disputed. Respondent concedes that he accepted rental payments from the German property in the amount of $17,329.22 and did not distribute a one-third share of these payments to petitioners as required under the will. The trust agreement also included terms governing the disposition of trust property, including provisions that permitted petitioners to request distributions from their respective shares of the trust. As to the qualified retirement plans and insurance policies owned by the trust, the...