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This entry was published on 2014-09-22
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SECTION 5-4.6
Application to compromise action
Estates, Powers & Trusts (EPT) CHAPTER 17-B, ARTICLE 5, PART 4
§ 5-4.6 Application to compromise action

(a) Within sixty days of the application of an administrator appointed
under 5-4.1 or a personal representative to the court in which an action
for wrongful act, neglect or default causing the death of a decedent is
pending, the court shall, after inquiry into the merits of the action
and the amount of damages proposed as a compromise either disapprove the
application or approve in writing a compromise for such amount as it
shall determine to be adequate including approval of attorneys fees and
other payable expenses as set forth below, and shall order the defendant
to pay all sums payable under the order of compromise, within the time
frames set forth in section five thousand three-a of the civil practice
law and rules, to the attorney for the administrator or personal
representative for placement in an interest bearing escrow account for
the benefit of the distributees. The order shall also provide for the
following:

(1) Upon collection of the settlement funds and creation of an
interest bearing escrow account, the attorney for the administrator or
personal representative shall pay from the account all due and payable
expenses, excluding attorneys fees, approved by the court, such as
medical bills, funeral costs and other liens on the estate.

(2) All attorneys fees approved by the court for the prosecution of
the action for wrongful act, neglect or default, inclusive of all
disbursements, shall be immediately payable from the escrow account upon
submission to the trial court proof of filing of a petition for
allocation and distribution in the surrogate's court on behalf of the
decedent's estate.

(3) The attorney for the administrator or personal representative in
the action for wrongful act, neglect or default who receives payment
under this section shall continue to serve as attorney for the estate
until the entry of a final decree in the surrogate's court.

(b) If any of the distributees is an infant, incompetent, person who
is incarcerated or person under disability, the court shall determine
whether a guardian ad litem is required before any payments are made, in
which case the court will seek an immediate appointment of a guardian ad
litem by the surrogate's court or, if the surrogate's court defers, the
court shall make such appointment. Any guardian appointed for this
purpose shall continue to serve as the guardian ad litem for the person
requiring same for all other purposes.

(c) The filing fee in the surrogate's court shall be computed based on
the amount of the gross estate prior to any payments made under this
paragraph.

(d) The written approval by such court of the compromise is conclusive
evidence of the adequacy of the compromise in any proceeding in the
surrogate's court for the final settlement of the account of such
administrator or personal representative.

(e) Nothing in this section shall be deemed to preclude the attorney
for the administrator or personal representative from petitioning the
surrogate's court for approval of a compromise and for allocation and
distribution thereof.

(f) No letters of administration shall be issued which will in any way
serve to abrogate the rights or obligations of an administrator or
personal representative or an attorney representing an administrator or
personal representative under this section.