The settlement of a New York estate may involve many different proceedings and issues. Initially, a proceeding needs to be commenced in the Surrogate’s Court to have an executor or administrator appointed to handle estate affairs. This includes the identification and collection of assets and the payment of claims and expenses. The New York Probate Lawyer Blog has published many articles discussing estate settlement.
The collection of assets is typically straightforward. A decedent’s bank account or other financial funds are obtained and deposited into an estate bank account held in the name of the administrator or executor. If a decedent owned real estate such as a house, the property can be sold so the proceeds can be collected and distributed to the beneficiaries of the estate.
There are occasions when a decedent’s assets are not easily identified or collected. In many cases, prior to a decedent’s death, assets may have been misappropriated by a third party or transferred to others under questionable circumstances. It is not uncommon to find that a Durable Power of Attorney was used to withdraw funds before a decedent’s death. There are many cases involving undue influence and financial or elder abuse whereby a person’s assets may be improperly obtained prior to death.
One excellent remedy in these situations is for a fiduciary to utilize the provisions of Surrogate’s Court Procedure Act (“SCPA”) Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information” and SCPA 2104 “Inquiry; trial and decree” to discover and obtain the return of estate property. This is a new and separate estate litigation proceeding which needs to be commenced in the Surrogate’s Court. The utilization of these statutes provides a very effective avenue for estate recovery. However, it is usually a difficult and hard-fought process to have success. A recent Bronx estate entitled Estate of Breer, decided by Bronx Surrogate Nelida Malave-Gonzalez on December 29, 2022, provides an insight into the problems faced when a fiduciary attempts to reclaim estate property.
In Breer, the estate administrator commenced a turnover proceeding with respect to funds which were claimed to have been misappropriated from a decedent’s Florida bank account by a child living in Florida during a period of time when the decedent had been residing in Florida. An issue was raised as to whether the Bronx New York Surrogate’s Court had jurisdiction over this claim. After reviewing the factual and procedural history of the case, the Court determined that the alleged unauthorized transfer of the decedent’s funds occurred in Florida and that no wrongful acts were alleged to have taken place outside of Florida. Also, there were no assertions that the wrongfully transferred funds had any connection to New York. As a result, the Court found that there was no basis for the New York Court to assert personal jurisdiction over the Florida child. Therefore, the New York turnover proceeding was dismissed. The Court stated that an ancillary turnover proceeding could be brought in the Florida courts.
I have represented clients throughout New York in estate litigation dealing with asset collection and other Surrogate’s Court and estate settlement matters. As can be seen from Breer, estate matters can be complicated, and an experienced lawyer is essential to assist with protecting estate assets. Do you have a problem or question regarding an estate? Call me Now for a free confidential review of your issue. We provide 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.