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A New York Executor May Obtain Withheld Property Through Contempt Proceedings

Estate proceedings in New York typically involve the collection of assets that were owned by the decedent. In most cases the assets are easily identified and collected such as bank accounts or securities accounts.

As discussed in earlier posts in the New York Probate Lawyer Blog, there are occasions when third parties claim possession or title to assets that are estate property. When this happens the Executor or Administrator must commence litigation to recover these items. The starting point for this type of Court proceeding is Surrogate’s Court Procedure Act (SCPA) 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This proceeding is generally known as a “turnover proceeding” and is used by the fiduciary to obtain information about withheld assets and to require that such assets or the proceeds of such assets be turned over to the fiduciary.The turnover proceeding is commenced by the fiduciary by filing a petition with the Surrogate’s Court which has jurisdiction over the decedent’s estate. The Court will typically grant an order allowing the fiduciary to take the testimony of the person alleged to be withholding estate property and also to obtain document discovery. Ultimately, if the Court is satisfied that sufficient information exists to show that someone is not delivering estate property to the executor or administrator, the Court will hold a hearing to determine the rightful owner.

I have represented fiduciaries in connection with SCPA 2103 proceedings.  The fiduciary has an obligation to collect and safeguard all estate property and must pursue the collection of such assets in a reasonable manner.  If an executor or administrator fails to attempt to recover all estate property, he may be liable for breach of fiduciary duty.

In a recent case decided by Manhattan Surrogate Nora Anderson on November 10, 2015, entitled Estate of Tan, an executor commenced a turnover proceeding.  The executor claimed that the respondent had improperly obtained possession and control over certain real estate and other proceeds that were located in China.  During the course of the Surrogate’s Court proceeding the parties had entered into a Stipulation whereby the respondent agreed to turnover the claimed property and proceeds to the executor.  However, the respondent failed to comply with the terms of the Stipulation.  Due to the respondent’s non-compliance the executor commenced a contempt proceeding against the respondent.   Following a hearing, the Surrogate found that the respondent had violated the terms of the Stipulation and was in contempt of the Court Order.  Thereupon, the Court gave the respondent a brief period of time to comply or be subject to commitment.

As can be seen from Tan, the collection of estate assets can sometimes be very difficult and require extensive Estate Litigation. The assistance and guidance of an experienced Estate Lawyer can be essential to successfully recovering estate property. If you have any questions regarding estate settlement or Surrogate’s Court contests, call me for a free discussion regarding your issue.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

Jules Martin Haas provides his clients and members of the community with a free monthly e-newsletter which contains articles covering a variety of legal topics including estate planning, financial matters and real estate. If you wish to be placed on the e-newslist, simply e-mail me at jules.haas@verizon.net. You can cancel receiving the newsletter at anytime.

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