Discover and Turnover Proceedings
If you suspect that somebody has taken money from a Decedent, or, if you discover that a fiduciary has taken money, you can institute proceedings to have the amount converted returned to the Estate. 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.
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.
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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