In Surrogate’s Court, an Order to Attend and Be Examined is a legal tool often used in estate proceedings to compel someone to appear in court and provide testimony under oath.
This order is typically issued as part of an SCPA 2103 proceeding under the Surrogate’s Court Procedure Act and is designed to gather information about the assets of an estate, particularly when there are concerns about missing property, improper conduct by a fiduciary, or questions related to the administration of the estate.
In this blog post, we will explore what an Order to Attend and Be Examined entails, its purpose under SCPA 2103, and how it plays a crucial role in estate administration.
SCPA 2103: Discovery and Turnover of Estate Assets
The legal basis for an Order to Attend and Be Examined in Surrogate’s Court is found in SCPA 2103, which governs proceedings for the discovery and recovery of estate property. This statute allows the executor or administrator of an estate, or any interested party, to investigate and recover property that belongs to the estate but may be in the possession of others.
SCPA 2103 gives the court the authority to issue an order directing individuals to:
– Appear in Court and be questioned under oath about their knowledge of the estate’s assets.
– Produce documents or information relevant to the property in question.
The goal of an SCPA 2103 proceeding is to ensure that all assets are properly accounted for and returned to the estate, so they can be distributed according to the decedent’s will or intestate law.
Purpose of an Order to Attend and Be Examined
An Order to Attend and Be Examined is typically issued as part of an SCPA 2103 proceeding to investigate and resolve disputes or concerns about estate property. This may involve:
– Identifying missing or undisclosed assets that should be part of the estate.
– Investigating the conduct of fiduciaries such as executors or administrators who may have mishandled estate assets.
– Clarifying the ownership of property that is disputed between the estate and third parties.
The examination allows the court and interested parties to gather information necessary to protect the estate and ensure proper distribution to the beneficiaries.
Common Scenarios for SCPA 2103 and the Order to Attend and Be Examined Process
SCPA 2103 proceedings are commonly initiated when there is suspicion that estate assets are missing, were misappropriated, or are being withheld by someone who is not entitled to them. Common scenarios include:
– Suspected Fiduciary Misconduct: If an executor or administrator is believed to be mishandling estate assets, an Order to Attend and Be Examined can compel them to explain their actions and account for the property.
– Recovery of Estate Property from Third Parties: If property belonging to the estate is in the possession of someone other than the fiduciary, the examination can uncover its whereabouts and lead to its recovery.
– Disputes Over Asset Ownership: If there is uncertainty over whether certain assets belong to the decedent or another party, the examination can help resolve ownership disputes.
During the examination, the person who is ordered to attend must provide testimony under oath about their knowledge of the estate and its assets. This process often uncovers crucial information for resolving disputes and ensuring that the estate is properly administered.
(Note that you Will need to have either Limited Letters of Administration or Letters of Administration or Letters Testamentary to have standing to commence a discovery proceeding).
Who Can Be Examined Under SCPA 2103?
An Order to Attend and Be Examined can be directed toward:
– Executors or administrators of the estate (reverse discovery).
– Beneficiaries or heirs with knowledge of estate matters.
– Third parties such as business associates, financial institutions, or anyone in possession of information or assets relevant to the estate.
These individuals are required to appear in court or at a deposition to answer questions about the property and any relevant financial transactions.
What Happens During the Examination?
During the examination, the individual will be questioned under oath about issues such as:
– The existence and location of estate assets.
– Any transactions involving estate property.
– The handling of estate finances** by the executor or administrator.
The examination is a critical part of an SCPA 2103 proceeding because it allows interested parties to gather evidence, clarify ambiguities, and, if necessary, seek the court’s intervention to recover assets.
Consequences of Failing to Comply with the Order to Attend and Be Examined
An individual who is ordered to attend and be examined under SCPA 2103 must comply with the court’s directive. Failing to do so can result in serious legal consequences, such as:
– Contempt of court Non-compliance may lead to contempt proceedings, which can result in fines or imprisonment.
– Adverse inferences: If the person refuses to cooperate or provide truthful testimony, the court may infer that they are withholding or concealing information, which could negatively affect their legal standing.
Additionally, anyone who provides false testimony during the examination may face perjury charges or other penalties.
Why the SCPA 2103 Process Is Important
The SCPA 2103 process, including the Order to Attend and Be Examined, is crucial to ensuring that all assets are properly accounted for in an estate. This process helps:
– Protect beneficiaries’ rights by uncovering hidden or mishandled assets.
– Ensure fiduciary accountability by requiring executors and administrators to explain their management of the estate.
– Resolve disputes over property ownership or financial transactions related to the estate.
In some cases, the mere issuance of an order to attend and be examined can prompt parties to settle disputes or disclose missing assets, avoiding further litigation.
Conclusion
An Order to Attend and Be Examined under SCPA 2103 is a powerful tool used in Surrogate’s Court to ensure the proper administration of an estate. It allows interested parties to gather critical information about estate assets and uncover any misconduct or improper handling by fiduciaries or third parties. If you are involved in an estate matter where assets are missing or being disputed, it is important to understand your rights and responsibilities under SCPA 2103 and seek guidance from an experienced estate attorney.
By ensuring transparency and accountability, this process protects the integrity of the estate and helps ensure that the decedent’s wishes are honored.
For more information, please contact NYC Probate Litigation, 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
Visit Regina on LinkedIn
Visit Regina on Facebook
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.