IN THE MATTER OF THE VINCENT W. URBANK, ETC. (186576, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 7, 2022
• Docket: A-2022-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2022-19

IN THE MATTER OF THE VINCENT W. URBANK AND IDA M. GRAF URBANK REVOCABLE LIVING TRUST DATED 07/18/1991. ___________________________

Submitted January 27, 2021 - Decided July 7, 2022

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. 186576.

Vincent A. Urbank, appellant pro se.

Taff, Davies & Kalwinsky, attorneys for respondent Successor Trustee of the Vincent W. Urbank and Ida M. Graf Urbank Revocable Living Trust (Joel A. Davies, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

In this probate matter, Vincent A. Urbank appeals pro se from a January

6, 2020 judgment approving the formal accounting of a revocable living trust; a January 13, 2020 order denying his motion to change venue; and a January

24, 2020 order denying reconsideration of both. We affirm the denial of the

motion to change venue, but vacate the judgment approving the accounting and

remand for the probate judge to take responsibility to ensure the three

successive trustees the court has appointed in this case since its approval of the

settlement agreement resolving the trust litigation each files an accounting that

can be fairly approved by the court after notice to the beneficiaries, ordering

the disgorgement of commissions and fees the court has previously awarded , if

necessary, to secure the trustees' compliance.

Our understanding of the history of this case is admittingly incomplete.

What impels us to act on such an unsettled record is the current trustee's

agreement with Urbank that "there have been no previously submitted or

approved accountings" in this matter, apparently since the appointment of the

first court-appointed trustee in 2014. If that understanding is incorrect and

accountings by prior trustees have been submitted and approved by the court,

then production of those accountings and proof of their approval will satisfy

the remand order. But if accountings have not been filed and fees and

commissions awarded notwithstanding, that should be rectified with the

probate judge taking all necessary steps to ensure all trustees and

A-2022-19 2 administrators appointed by the court, having no connection to the estate or the

trust, fully account for estate and trust assets formerly in their hands. The

probate judge should also ensure the beneficiaries come to an agreement on the

appointment of a successor trustee, thereby ending the court's appointment of

any more trustees for this trust.

The record we have reveals the following. Vincent A. Urbank was

apparently the only child of Vincent W. Urbank and Ida M. Graf, the grantors

of a revocable trust established in 1991. Following their deaths, Vincent J.

Urbank, grandson of the grantors, sued his father on behalf of himself and his

three siblings, alleging their father, as successor trustee, had failed to make

required distributions to them. Their father, our appellant, apparently

contended his father created a testamentary trust in 2006, superseding the

revocable trust and placing all then-existing trust assets and all other estate

assets into a new trust to be administered to meet his needs, with his children

taking the remainder at his death.

Appellant and his children settled the trust litigation in 2014 via a

comprehensive seventeen-page agreement in our appendix. That agreement

was "based on the understanding that the existing trust assets held in trust by

the interim trustee [were] on the order of $1,640,000." The parties agreed

A-2022-19 3 $500,000 of trust assets would be allocated to appellant's children, leaving,

after taxes and attorney's fees, approximately $875,000 in real property and

liquid assets "allocated to the defendant Vincent A. Urbank in trust to provide

for his reasonable living expenses commensurate with his present standard of

living (including without limitation the cost of housing, clothing, food,

entertainment, and reasonable vacation travel)." Urbank represents he has

made no requests for distributions, preferring to allow trust assets to

accumulate and grow.

The court-appointed interim trustee/temporary administrator of the

Estate of Vincent W. Urbank, Peter Van Dyke, Esq., was charged with a

variety of tasks under the agreement and permitted reasonable trustee fees as

approved by the court, "with the anticipation" that the $50,000 set aside under

the agreement, which included income taxes due, "shall suffice to meet this

obligation," albeit recognizing the sum "only establish[ed] an estimate subject

to the realities of the taxes charged and the interim trustee's fees allowed by

the court." The agreement also provided that any trustee would provide an

annual "comprehensive accounting to the contingent beneficiaries" with a copy

to Vincent A. Urbank.

A-2022-19 4 The October 27, 2014 order approving the settlement provided the

parties were to nominate within forty-five days a corporate trustee, or if no

corporate trustee could be found willing to accept appointment, another trustee

acceptable to all parties, and that "[a]ll assets currently held in the control of

the interim trustee and or the estate of Vincent W. Urbank, shall be transferred

to the new trustee," who "shall retitle all assets to be held in the Vincent W.

Urbank Testamentary Trust." Finally, as relevant here, the order provided that

"Peter Van Dyke shall be paid the sum to be determined with his final

accounting for his services as the interim trustee of the Vincent W. Urbank and

Ida M. Graf Revocable Living Trust" and "[a]ny new trustee shall comply with

the terms of the Settlement Agreement as to the requirement to account to the

beneficiaries and the contingent beneficiaries of the Vincent W. Urbank

Testamentary Trust" (emphasis added).

The appendix includes a July 25, 2016 order prepared by Van Dyke

appointing Jerome Landers, Esq., as successor trustee of the Vincent W.

Urbank and Ida M. Graf Revocable Living Trust 1 to be bonded in the sum of

1 There is no explanation for the appointment of a successor trustee for the Vincent W. Urbank and Ida M. Graf Revocable Living Trust when the settlement agreement and the 2014 order approving it directed all trust assets to be retitled and held in the Vincent W. Urbank Testamentary Trust. A-2022-19 5 $762,000 and that VanDyke be awarded commissions as interim trustee of

$12,233.24 pursuant to N.J.S.A. 3B:18-25 and $27,444.14 pursuant to N.J.S.A.

3B:18-28(a) and an administrator's commission of $44,952.86, for total

commissions of $84,630.24.2 The order does not approve or reference a final

accounting despite providing "in lieu of executing release and refunding

bonds, the bonding company accept the within order and discharge the present

trustee bond."

The current trustee, Joel A. Davies, Esq., states he was appointed

successor trustee for the Vincent W. Urbank and Ida M. Graf Revocable

Living Trust by order of October 17, 2016, which order is not in the appendix.

There is, however, a "corrective interim order" of January 13, 2017, which

explains "the most recent order of the court having preserved the right for the

prior court-appointed, substitute trustee, Jerome C. Landers, Esquire, to be

discharged . . . upon his filing of an appropriate order to show cause and final

accounting . . . and the court having also advised" Landers "might be relieved

2 Although the order states it was entered for reasons expressed on the record on July 25, 2016, a transcript not provided to us, it also states the court "awarded the above-referenced full commission, as the Temp Trustee/ Administrator has waived his otherwise applicable entitlement to counsel fees and the court has not awarded income commissions for 2014, in an amount of $4,712.04, and for 2015, in an amount of $2,210.34, to which Temp Trustee/ Ad might otherwise be entitled." A-2022-19 6 of his role . . . upon the identification of another attorney . . . versed in probate

matters, and who deemed himself/herself ready, willing, able, and capable to

assume the role, and with independent counsel, Joel A. Davies, Esquire,

having indicated that he would accept said appointment," the court appointed

Davies as successor trustee replacing Landers and ordered Landers to file "a

certified accounting" within forty-five days (emphasis added).

Although the settlement agreement and the order approving it require

any trustee to file an annual accounting, Davies made no move to do so until

Urbank wrote to him in July 2019, about a letter Urbank received from Fidelity

Investments that two accounts titled in the name of his parents' revocable trust

totaling $65,009.13 were about to escheat to the State and information

received from his son that several others were already in the hands of the

unclaimed property administrator. Urbank complained in that letter that he

had "not received any accounting, done by your firm as trustee, or any other

firm/trustee since the settlement agreement dated October 27, 2014."

Davies wrote back in August thanking Urbank for his letter, and

advising he had acted on the information and been in contact with both

Fidelity and the State to retrieve the funds. Davies acknowledged that Urbank

was "correct that accountings are to be filed annually," but stated he had "not

A-2022-19 7 done so because no accounting was filed by Jerome C. Landers, Esq. and as

such there was no 'starting point' for my term." Davies advised he was

"[n]evertheless . . . filing two (2) accountings next week for the periods of

October 17, 2016, through October 16, 2017, and October 17, 2017, through

October 26, 2018."

Davies filed a verified complaint in October 2019 for approval of his

two accountings. In his complaint he noted that "[s]ince 2014, the court has

gone through multiple trustees with no success," that "there have been no

previously submitted or approved accountings to date," that he wrote two

letters to Landers in September and November 2018 "inquiring as to the status

of his certified accountings," but no accounting had been forthcoming and t hus

Davies "completed two independent accountings . . . using other information

and documentation provided to him." Davies' subsequent certification of

services noted he spent three hours on October 24, 2017, preparing the

accounting from October 17, 2016, through October 16, 2017; three hours on

October 16, 2018, preparing the accounting for October 17, 2017, through

October 16, 2018; and two hours on September 4, 2019, preparing his verified

complaint and order to show cause to approve the accounting.

A-2022-19 8 Urbank filed objections to the accounting. First, he noted he had not

requested a formal accounting of Davies, who had been the trustee for over

three years, but only that he provide the annual accountings he was required to

provide by the settlement agreement. Urbank complained Davies had taken it

upon himself to file a formal accounting "exclusively for his own benefit" and

was looking to the trust to pay for it. Urbank also complained the accountings

were not accurate, in that Davies had admitted "he does not have a starting

point to even provide an accurate accounting" and took no action for almost

three years after appointment to even request an accounting from the trustee he

succeeded. Urbank further noted the two dormant Fidelity accounts and the

other $20,000 in the hands of the unclaimed property administrator, which

represented nearly $85,000 in assets, were not included in either of Davies'

accountings. Finally, Urbank questioned the valuation of the real estate, which

had increased from an appraised value of $428,000 in 2014 to $628,530 in

2016, an increase of $200,530 with no explanation.

Davies acknowledged he "didn't know about this $85,000 because no

one ever told [him]" the assets existed and it would be reflected in his next

accounting. He reiterated that Landers never provided the final accounting he

A-2022-19 9 was ordered to provide, forcing Davies "to cobble together the information that

[he] had to the best of [his] ability for the time period."

As the judge who had previously presided over the matter and appointed

all three trustees had retired, the matter was heard by a different judge who,

after a brief argument, approved the accountings, including corpus

commissions of $3,942.87 and income commissions of $728.03 on assets of

$1,065,069.51, finding Urbank's exceptions insufficiently specific under Rule

4:87-8. The judge also ordered the trust to pay $4,716.95 "for legal services

rendered in connection with the preparation and filing of the accountings."

Urbank moved for reconsideration and requested a change of venue

based on the court having appointed trustees and an interim administrator and

awarded them fees and commissions without requiring those hand-picked

fiduciaries to file accountings or otherwise comply with the settlement

agreement and the orders appointing them. 3 In addition to failing to marshal

3 Urbank also complained about possible conflicts of interest stemming from other disputes he had with Toms River. See State v. Urbank, No. A-4221-16 (App. Div. Nov. 15, 2018) (slip op.); State v. Urbank, No. A-4089-17 (App. Div. May 1, 2019) (slip op.); State v. Urbank, No. A-0281-19 (App. Div. March 17, 2021) (slip op.). See Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., 423 N.J. Super. 549, 556 n.2 (App. Div. 2011) (permitting the citation of unpublished opinions under Rule 1:36-3 as "useful for the limited purpose of presenting relevant but general background and history"). A-2022-19 10 trust assets as evidenced by the $85,000 in dormant accounts, Urbank also

alleged the first trustee and administrator, Van Dyke, failed to pay a $30,000

nursing home bill for Vincent A. Urbank, failed to pay taxes on a Philadelphia

property belonging to the trust for two years and allowed the entry of a

judgment against the estate. Urbank expressed a lack of confidence in any

judge sitting in the county to hold Van Dyke, Landers or Davies responsible

for their actions or inaction.

Again following brief argument, the judge denied Urbank's applications,

finding he had not met his burden for a change of venue and his arguments as

to the accountings only rehashed his initial objections. In the transcript of the

argument, the judge referenced her satisfaction with a certification received

from Landers, which is not in the appendix, explaining he'd never provided an

accounting because the trust assets "did not ever really come into his hands."

The judge dismissed Urbank's arguments that approval of these two ad hoc

accountings, which lack any real basis and don't reference or account for

anything that occurred prior to October 2016, would deprive him of any ability

to ever sort this out as the next accountings will simply tie back to these two

court-approved accountings.

A-2022-19 11 Urbank appeals, reprising the arguments he made to the trial court and

stressing the judge erred in failing to require the prior trustees and

administrator to account and to deliver all documents in their possession

relating to the trust or the estate to the current trustee and by failing to address

their apparent mismanagement and neglect of trust duties. Davies counters

that the court should not disturb the findings of the trial court but says nothing

about the reliability of his accountings, which he admittedly "cobble[d]

together" without complete records from the two prior trustees.

Acknowledging the record is incomplete and that we may not have been

provided all the relevant facts, to say — on what is before us — that we find

the Probate Part's handling of this matter concerning would be an

understatement. We find no merit in Urbank's motion to change venue,

although we acknowledge his concern about the trial court's apparent failure to

hold the trustees and administrator it appointed accountable. Rule 4:87-1

provides that actions to settle the accounts of administrators and testamentary

and non-testamentary trustees shall be brought in the county where such

fiduciaries received their appointment. The trustees and administrator

appointed by the court in this case were all appointed in Ocean County, and it

A-2022-19 12 is that court that should ensure that each of those fiduciaries are held to

account.

As we noted at the outset of this opinion, what has impelled us to act on

what is plainly an incomplete record is the apparent unanimous view of both

Urbank and the current court-appointed trustee that there has never been an

approved accounting of trust assets since the trust litigation was settled in

2014. It further appears that notwithstanding the order providing that "Peter

Van Dyke shall be paid the sum to be determined with his final accounting for

his services as interim trustee of the Vincent W. Urbank and Ida M. Graf

Revocable Living Trust," Van Dyke received nearly $85,000 in trust and

administrator's commissions without apparently ever filing a final accounting

or delivering to his successor all account information, documents relating to

the real properties, copies of account statements and records of disbursements.

As the trustee and the court continue to refer to the Vincent W. Urbank and Ida

M. Graf Revocable Living Trust instead of the Vincent W. Urbank

Testamentary Trust, it would also appear the assets have not been retitled as

agreed and ordered.

Although the second judge apparently credited the certification by

Landers to the effect that he did not account because the trust assets "did not

A-2022-19 13 ever really come into his hands" during the three months he appeared to have

served as a trustee, the January 13, 2017 "corrective interim order" entered

after Davies replaced Landers ordered Landers to file a "certified accounting"

within forty-five days. Thus, the second judge should not have accepted

Landers' certification without hearing from Landers on the record as to his

failure to comply with an unequivocal court order directing him to file an

accounting.

Nor should the court have approved Davies' two accountings, which he

admitted he "cobble[d] together" without prior records or accountings. The

court should not overlook that Davies appears to have taken no action to fulfill

his fiduciary duties to the trust for nearly three years. And when confronted

with the absence of prior accountings and demands from Urbank about having

allowed $85,000 in trust assets to escheat, Davies "cobble[d] together"

accountings rather than petition the court for instructions as to how he should

proceed.

We reject the trial court's dismissal of Urbank's objections to the

accounting as insufficiently specific under Rule 4:87-8. Urbank's objections

are clear to us, and we fail to see how he should be held to exactness when the

court appears to have so obviously failed to hold its appointed fiduciaries to

A-2022-19 14 the same standard. We further note that in approving Davies' fees, the judge

failed to address the general rule that an attorney fiduciary should be paid as a

fiduciary and not as an attorney for services customarily performed by non -

attorney fiduciaries. See In re Estate of Risica, 179 N.J. Super. 452, 455-56

(App. Div. 1981) (noting "work or services which do not require expert

attention or professional skill cannot be delegated but must be performed by

the fiduciary and compensated only by way of his commissions").

We vacate the January 6, 2020 judgment approving Davies' two

accountings and remand for the probate judge to take responsibility to ensure

that each of the three successive trustees the court has appointed in this case

either files an accounting, produces a previously filed accounting either

approved by the court or the beneficiaries or otherwise explains on the record

why it was impossible to comply with the order(s) that they account.

We expect that the trial court will act to enforce its own orders,

proceeding by way of order to show cause within the next forty-five days and

not delegate the task to the current trustee to file an action to be charged to the

trust. The trustees who have had trust assets entrusted to them should be

ordered to file accountings that can be fairly approved by the court after notice

to the beneficiaries. The court should not hesitate to order the disgorgement of

A-2022-19 15 commissions and fees the court has previously awarded, if necessary, to secure

the trustees' compliance. The court must ensure that all records, information

and documents relating to trust and estate assets are promptly turned over to

the current trustee. The beneficiaries should come to an agreement on the

appointment of a successor trustee, thereby ending the court's appointment of

Affirmed in part and vacated in part. We do not retain jurisdiction.

A-2022-19 16