A New York Fiduciary May Commence a Proceeding to Recover Property Withheld From an Estate

Following the death of a decedent, proceedings in the Surrogate’s Court are often begun for the appointment of an Executor or Administrator.  As discussed in many past posts in the New York Probate Lawyer Blog, an Executor is appointed when a Will is admitted to probate and letters testamentary are issued.  If a person dies without a Will, he is said to have died intestate and the Court then issues letters of administration to the administrator.  The administrator is determined according to statutory priority of kinship pursuant to Surrogate’s Court Procedure Act (SCPA) 1001 entitled “Order of priority for granting letters of administration”.

New York estate lawyers are aware that an estate fiduciary has many responsibilities including locating and collecting estate assets.  Sometimes it may occur that an asset belonging to the estate is being withheld or has been wrongfully taken by a third party.  There are provisions in the SCPA that can be utilized by a fiduciary to discover and recover these assets from the third party.

SCPA 2103 is entitled “Proceeding by fiduciary to discover property withheld or obtain information”.   Under this section of the law the fiduciary can ask the Court to issue an order requiring the third party to appear in Court to allow the fiduciary to take testimony as to the circumstances relating to the alleged withholding of estate assets.  SCPA 2103 combined with SCPA 2104 not only allow for an inquiry, the provisions state that a hearing can be held so that the Court can make a full and final determination regarding the title to property that is claimed to be owned by an estate.

In a recent case decided by Surrogate Edward McCarty III on March 31, 2014 entitled Estate of Bernfeld, the Court allowed discovery regarding information relating to the decedent’s dental practice that was being withheld by his surviving partner.

The discovery provision of SCPA 2103 and 2104 can be very helpful to a fiduciary in locating and preserving estate assets.  I have represented numerous fiduciaries who utilized these statutory provisions to learn about and recover assets that were owned by a decedent.  Interestingly, these sections of the law have been used to obtain possession of a decedent’s home that is being occupied by family members who refuse to vacate the premises and interfere with estate settlement.

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.

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