"Compel Distribution of Property"

Compel Distribution of Property

Did you know that you can compel distribution of property in Surrogate’s Court pursuant to SCPA 2101(4). There are times when an executor, administrator, or Trustee refuses to distribute the assets of a Trust or Estate. Perhaps the executor and the beneficiaries do not agree to the amount to be held in reserve for payment of any potential claims or administrative expenses. Perhaps the fiduciary just does not want to make a distribution until the estate is completely wound up. 

If a fiduciary refuses to pay the distributive share, then the person entitled to said share can commence an action or proceeding to compel distribution of property. Indeed, a person can seek the payment of their share after the expiration of seven (7) months from the time Letters Testamentary, Letters of Administration, or Letters of Trusteeship are issued.

Indeed, once seven months have passed from the time letters testamentary or administration have been issued, the estate fiduciary is under an obligation to make payment of any testamentary disposition or distributive share if there are sufficient assets to cover administration and funeral expenses and debts.

What is SCPA 2102(4)?

SCPA 2102 is an amalgam of proceedings to obtain relief against a fiduciary. (In a previous blog post, we discussed a proceeding under 2102 to obtain information. In this post, we discuss getting the property delivered.) If the fiduciary refuses to deliver the property, then a proceeding to compel payment or delivery of the assets may be brought pursuant to SCPA 2102(4).

Indeed, when the fiduciary has failed to deliver the property after request made upon him in writing, then you can ask the Judge to Order that the property be distributed to you. This means that if you are a beneficiary under a Will or a Trust, or if you are entitled to a piece of the estate, then you can ask the Trustee, Executor, or Administrator to distribute the property to you.

If the fiduciary refuses to make the distribution, then you can ask the Court to Order the fiduciary to order the distribution of your share. Note that the pendency of an accounting proceeding does not preclude a beneficiary from commencing a separate proceeding to compel payment pursuant to SCPA 2102(4).

What Kind of Property Can I Compel to be Distributed?

You can ask for money, jewelry, personal, or real property to be distributed to you. If you are entitled to the assets, then you can ask a Court to distribute those assets to you, subject only to a fiduciary have sufficient funds on reserve to satisfy any claims, debts, or estate expenses. 

What Should I do Before Commencing a Petition to Compel Distribution of Property Pursuant to SCPA 2102(4)?

Before filing a petition with the Court to compel a distribution of property, you should write a letter to the fiduciary, requesting the distribution. The letter should specifically state that it has been more than seven months since letters have issued, that you are entitled to assets or funds from the trust or estate and that the fiduciary has an obligation to remit those funds to you.

The letter should be addressed to the fiduciary of the estate and should be sent in a way that the receipt of the letter can be tracked. Remember that you do not need to ask for an accounting of the assets. You are just asking for your distribution. If you request an accounting that will be a different proceeding. There are pros and cons to compelling an accounting versus compelling a distribution. 

How do I Petition to Compel Distribution of Property Pursuant to SCPA 2102(4)?

If you have sent a demand letter for distribution and have not received a response, you can file a petition to compel a distribution with the Court. You can request an Order from the Court that the fiduciary be required to distribute the assets to you within a certain number of days.

In your Petition, you have to explain who you are, when the fiduciary was appointed, what you are entitled to under the Will or the Trust, that there are sufficient assets in the Will or the Trust to satisfy the bequest to you, that the fiduciary is intentionally not distributing the assets, that more than seven months have passed, and that you are entitled to the funds. 

In addition to the Petition with exhibits (including that demand letter that you should have sent the fiduciary before you started writing the Petition), you have to prepare an Order to Show Cause if you are seeking immediate and potentially injunctive relief, such as a temporary restraining order. If you are not seeking immediate relief, then you will need a Citation, instead of an Order to Show Cause.

You should contact the county where you will file the papers, out of an abundance of caution to determine whether any other documents are necessary. 

What Happens after I file my Petition to Compel Distribution of Property Pursuant to SCPA 2102(4)?

After you file the Petition with the Order to Show Cause  or Citation and pay the fee, the Court will review it to determine whether it should be entertained. If the Petition is entertained, then you will receive a signed Citation or a signed Order to Show Cause with instructions on how to serve the papers upon the fiduciary.

Following the Court date, there is typically a Court conference at which time an agreement is entered into as to when you will receive your distribution. If the fiduciary has a good reason for why he or she has not distributed the funds, the fiduciary will advise the Court. Typically, a fiduciary will tell the Court that they do not have enough cash on hand to satisfy the request because they need the cash to pay taxes or some other expenses or debts of the estate.

Be aware that even if a petitioner is successful in having the Court order the fiduciary to pay an overdue general legacy, the Court will not normally direct payment of the petitioner’s legal fees from the estate. 

We can help you compel distribution of property pursuant to SCPA 2102(4). Contact us to learn more.

For more information, please contact Guardianship, probate and estate planning attorney Regina Kiperman:

Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com

Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005

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This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

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