There are numerous instances where the identity and location of estate assets is a source of New York City Estate litigation in the Surrogate’s Court. An estate fiduciary such as an Executor has a fiduciary duty to collect and protect estate assets for the benefit of estate beneficiaries. If the fiduciary fails to carry out his responsibilities he may be found to have breached his fiduciary duty and be personally responsible for the loss to the estate.
When a person dies a search is commenced to collect assets. The New York Probate Lawyer Blog has discussed this issue in recent and past posts. The primary source of a remedy to find assets is found in Surrogate’s Court Procedure Act (SCPA) section 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This statute is very broad in scope and allows an executor or administrator to investigate all circumstances which may lead to the identification and recovery of assets. While the statute is sometimes seen as allowing what is referred to as a “fishing expedition”, the Surrogate’s Court generally allows a wide opportunity for inquiry.
A recent Brooklyn Estate case entitled Estate of Geraci, decided by Brooklyn Surrogate Margarita Lopez Torres on October 15, 2018, demonstrates the applicability of the statute. In Geraci, the daughter of a decedent sought authority to investigate actions by her brother whereby real estate that was owned by their mother was deeded to the brother seven months prior to the mother’s death. This set of facts is very common and involves transfers of assets just before a person dies. Typically, transfers are made when a decedent is suffering from an illness or disability and it appears that the asset transfer is contrary to the decedent’s dispositions in a Last Will and other expressions of an estate plan. These cases involve issues of capacity and undue influence.