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Discovery of Assets in the Surrogate’s Court Can Present Attorney Privilege Issues

shutterstock_635914376-300x144One of the aspects involved with administering an estate in New York is the identification and collection of estate assets.  A decedent may have owned bank accounts, security investments, real estate or business interests.  In many cases, it is rather easy for an executor or administrator to obtain information regarding assets.  A decedent may have various records at home or at a business office.  Also, bank statements or other information may be received in a decedent’s mail.  Another source of information are items contained in a decedent’s income tax returns such as the names of banks or financial institutions which paid interest income or dividends.  If the decedent had an accountant, this person may be in possession of asset information.

One problem that is faced in many estates is that a decedent may have transferred assets prior to death.  When this occurs, it may be difficult to determine the identity of these assets.  Also, once the assets can be identified, issues arise as to whether such transfers were valid or should be revoked due to lack of capacity or undue influence.

The New York Probate Lawyer Blog has published many articles concerning the discovery of assets belonging to a decedent.  An administrator in an intestate estate or an executor in a probate situation can utilize the process provided by Surrogate’s Court Procedure Act 2103, entitled “Proceeding by fiduciary to discover property withheld or obtain information”.  This statute allows the estate fiduciary to commence a proceeding to discover possible estate assets held by third parties and to have the Surrogate’s Court determine whether the assets should be found to be part of a decedent’s estate.

The above situation occurred recently as recounted in a decision by Albany Surrogate Stacy L. Pettit, dated April 21, 2021 entitled “In Re Proceeding Pursuant to SCPA 2103 to Discover”.  In this case, the executor commenced proceedings under SCPA 2103 and 2104 concerning a deed transfer of real estate which occurred shortly before the decedent’s death.  As part of the discovery process, the executor sought documents regarding the transfer from the attorney who represented the decedent to facilitate the deed transfer.  As it turned out, following the decedent’s death, the attorney who assisted the decedent engaged in post-death communications with the attorney for the person to whom the property had been transferred.  The executor sought discovery of the post-death communications which occurred between the two attorneys.

There was opposition to the disclosure of this information based on attorney-client privilege and other grounds.  After reviewing the parties’ various rights regarding discovery, the Court determined that it needed to perform an “in camera” review of the requested material to determine whether it would be excluded based upon privilege.

As can be seen from this case, the discovery and recovery of estate assets can be complicated.  It may involve Surrogate’s Court proceeding and issues regarding evidence and privilege.  I have been involved in many cases regarding disputed estate assets.  Call Me Now for a free confidential review of your estate issue.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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