Discovery and Turnover Proceedings
If you suspect that somebody has taken money or property from a Decedent during their lifetime, or from an estate, or, if you discover that a fiduciary has taken money, you can institute discovery and turnover proceedings to have the converted assets returned to the Estate. The discovery phase and the turnover phase are two separate proceedings.
What is the Discovery Phase of the Proceeding?
A discovery proceeding pursuant to SCPA 2103 may be commenced by any legal representative of the estate, including a preliminary executor or a temporary administrator. The goal of the discovery proceeding is to learn who took the assets, and have the assets returned to the estate. In the discovery portion of the proceeding, you are asking the Court for permission to examine, under oath, an individual, for the purposes of determining whether or not that individual has information relating to the conversion of the assets. The scope of these proceedings can be quite broad. You do not need to have concrete evidence that the individual has taken the assets. You just need to demonstrate to the Court that the individual you are seeking to examine either: has the assets, or has the information as to the whereabouts of the assets, or that you believe the person has the information about the assets.
What is the Turnover Phase?
After you have examined the individual, if you still believe that the individual has the assets, then you have to turn your discovery proceeding into a turnover proceeding. The manner in which this is done may differ by county. In certain counties, you can just amend your discovery petition into a turnover petition. In other counties, you have to bring the turnover petition. Unlike in the discovery petition, in the turnover petition, you have to demonstrate the the person has the assets and you want to have a trial on the issue. The turnover petition is governing by SCPA 2104.
What other actions can be commenced as part of the Discovery and Turnover Proceedings?
An action can also be commenced against a fiduciary holding property. If you believe that a legal representative is holding property that belongs to you, then you can institute a reverse discovery proceeding pursuant to SCPA 2105.
How do I Commence Discovery and Turnover Proceedings?
Any discovery proceeding is commenced by the fiduciary filing a Petition and either an Order to Attend or an Order to Turnover for the Surrogate to sign. The petition should set forth the property that is believed to be missing, and, where known, the person who is believed to have taken it. This is a miscellaneous proceeding so the petition should be filed with the Miscellaneous department. If the Surrogate signs the Order, then you have to serve a Certified Copy of the Order, along with the witness fee on the person you are seeking to examine.
The person served with the Order has to appear for an examination as to the whereabouts of the property alleged to have been converted. The petitioner generally bears the burden of proving that the property belonged to the decedent and that the property was taken by the respondent. If the respondent claims that the property was gifted to the respondent by the Decedent, then the respondent has the burden of proving the gift by clear and convincing evidence. This can be accomplished by showing Decedent’s gift tax returns or letters or document signed by the Decedent, which demonstrate the intent to make the gift. If the respondent is unable to meet his burden, then the Surrogate will Order the return of the property to the estate.
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