In the Matter of Zirinsky 2005 NY Slip Op 25454, Nassau County New York Surrogate John Riordan ruled that the fiduciary of a deceased fiduciary must apply to the Court under SCPA 2207(7) in order to obtain all of the rights and powers of the deceased fiduciary. In the absence of such a determination, the power of the fiduciary is limited to that property of the estate coming within his or her possession at the death of the origninal fiduciary.

Among the issues in this case is that of virtual representation. Because the original executor under the will of Ruth Zirinsky (here husband) had also died, Robert Zirinsky –one of the sons of the couple– was seeking to account for his father, the deceased fiduciary. He was acting in capacity as his father’s executor which raised an interesting paradox.

Because Robert Zirinsky was acting as his father’s executor, he was , in effect, standing in his father’s shoes acting on behalf of his father. Were he to be permitted to account on behalf of his father, since he would actually be receiving this accounting as his father’s executor, he would in essence be accounting to himself.

Since Robert Zirinsky did not apply to the court for all of the rights and powers that his father had as fiduciary of his mother’s estate, his power only extended to that property which was in his father’s estate. The court solved this problem by requiring that Mr. Zirinsky account to independent trustees of the trusts created under the decedent’s will for the benefit of grandchildren.