Learn About A New York Surrogate’s Law to Recover Assets From An Estate

An executor or administrator of a New York estate has the duty to identify and collect all of the assets belonging to a decedent.  These assets include bank accounts, stocks, bonds, retirement accounts such as IRA’s, and real estate.  Once these items are collected and the estate bills and claims are paid, a distribution can be made to the estate beneficiaries.

It is not uncommon for fiduciaries to become engaged in estate litigation regarding the collection of assets.  Third parties may claim to own items that were obtained from a decedent in wrongful or questionable ways.  For example, someone may be the title owner of a bank account or real estate which was transferred to them shortly before the decedent’s death and at a time when the decedent lacked capacity due to illness or injury.  The estate administrator or executor may try to recover such assets claiming that the decedent lacked capacity and was unduly influenced at the time of the transfer.  The New York Probate Lawyer Blog has published many articles concerning the recovery of assets by an estate.

There are also instances where a third party may claim that the decedent’s estate is holding property that really belongs to the third party.   In these cases the third party owner can commence a proceeding in the Surrogate’s Court under Surrogate’s Court Procedure Act (SCPA) 2105 to recover the items from the estate.   SCPA 2105 is entitled “Proceeding to compel delivery of property by a fiduciary which is claimed by another or others”.

These cases which are often referred to as reverse turn-over cases, involve a third party who starts the proceeding to reclaim the asset from the estate.  A recent Staten Island Estate case decided by Staten Island Surrogate Robert Gigante on November 26, 2018 provides an interesting example of an SCPA 2105 reverse discovery proceeding.  In Matter of Estate of Stasinopoulos, a residential property had been owned by an individual who had given his wife a Power of Attorney at the time he received a criminal conviction.  Thereafter, the wife used the Power of Attorney to transfer the real estate to her own name.  After the wife died, the husband claimed that the wife improperly used the Power of Attorney to transfer the property to herself.  He commenced a SCPA 2105 proceeding to recover the property from the estate.  In its decision, the Court ruled that a hearing was needed to determine whether the wife’s use of the Power was valid.  While the Court allowed the property to be sold, it directed that the sale proceeds be held in escrow pending the outcome of the SCPA 2105 hearing.

I have represented many clients in cases where a claim was made against an estate to turn over property the client asserted belonged to him and not the decedent.  I have also represented fiduciaries in turn-over proceedings in the Surrogate’s Courts where the estate sought to collect assets belonging to a decedent .  These proceedings can be complicated and the assistance of an Estate Lawyer can be essential.   If you have a question or issue regarding Estate Litigation call me now for a free review.  We provide reasonable and flexible fee arrangements.

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 County 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.

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