IN RE: the Application of Denward W. Collins (2026)

Before the court is an ex parte application for the advance payment of commissions pursuant to SCPA 2311 by Denward W. Collins, Jr., as executor of the estate of Francis J. Roessler, Jr. and for an order: (1) directing the petitioner to pay the sum of $80,656.87 to himself on account for the remaining commissions due to him as executor of the estate of Francis J. Roessler, Jr., through December 31, 2025, upon filing with the court an increased bond in the total amount of $149,183.87 securing the return of said sum if and to the extent payment is disallowed; and (2) directing that the total expense in connection with this application be borne by the petitioner.

The decedent died on August 13, 2015 and letters testamentary were issued to the petitioner by decree of this court dated April 4, 2018. The petitioner has received securities in the amount of $5,152,781.79 of the decedent, as well as real property in the amount of $525,000.00, which have all been sold. Petitioner states that the receiving commissions due to the petitioner are in the amount of $149,183.87 and he is seeking an advance payment in the amount of $80,656.87 due to tax implications. Petitioner previously made an application for advance payment of commissions by petition dated April 20, 2018 and the application was granted authorizing petitioner to take an advance payment of commissions in the sum of $60,527.00 on June 29, 2018.

A fiduciary may seek an advance payment of a portion of their commissions prior to judicial settlement of the account by application pursuant to either SCPA 2310 or SCPA 2311. Additionally, while a petition for advance payment of commissions may be made ex parte, the commissions advanced may not exceed receiving commissions without the consent of the beneficiaries (see SCPA 2311[3]; In re Martin, NYLJ, June 14, 2013, at 28 [Sur. Ct. New York County]).

SCPA 2310 allows the fiduciary to apply "to receive a sum on account of the commissions to which he would be entitled if he were then filing his account and it were judicially settled," and show the facts upon which the application is founded. However, pursuant to SCPA 2310(3), the payment on account "shall not exceed the receiving commissions due the fiduciary, except that the court may award a greater sum where all persons whose rights or interests are affected by the payment are persons under no legal disability and by acknowledged instrument consent thereto."

Additionally, pursuant to SCPA 2311(1), the fiduciary may petition, ex parte, to "receive a sum on account of the commissions to which he would be entitled if he were then filing his account and it were judicially settled," which must show that unless he is allowed such sum on account of commissions: 1. he or the estate will be deprived of substantial advantages under the income tax laws of the United States or the State of New York, or 2. he will suffer inconvenience or hardship, or 3. that all persons whose rights or interests would be affected by the payment applied for are persons under no legal disability and have by acknowledged instrument consented thereto.

Based on the foregoing, the application is DENIED, as petitioner seeks commissions that exceed the receiving commissions, without the consent of all interested parties. Additionally, the court is concerned that the estate has not been fully distributed at this juncture, even though the decedent died almost ten years ago. The fiduciary is hereby directed to file a judicial accounting as executor within sixty (60) days of the date of this decision and order.

Any future application for commissions may be made pursuant to SCPA 2310, on notice to all interested parties, including all charitable organizations.

This constitutes the decision and order of the court.

Dated: July 7, 2026

Mineola, New York

E N T E R:

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court

David P. Sullivan, J.