The Executor or Trustee won’t Share any Information with me! How Can I Compelling an Accounting?
Five years ago, Ellie died a resident of Kings County, survived by her two children Ted and Fred. At the time of her death, Ellie owned real property and some cash assets. A few months after Ellie’s death, Letters Testamentary were issued to Ted by the Kings County Surrogate’s Court. Ted therefore, became the Executor.
In the past five years, Ted has not done much to administer the estate. More importantly, Ted has refused to share any information with Fred. Fred was expecting a sizeable share to come his way. However, he has only received a few thousand dollars over the past five years. Last year, Ted finally sold the real property, but Fred has yet to see a dime from the proceeds of the sale. What should Fred do?
Fred should file a petition with the Surrogate’s Court to Compel an Accounting.
What is an Accounting?
An accounting is a packet prepared by the Executor or Trustee (or “fiduciary”) to account for how the assets of an estate or trust that have been and will be used. More specifically, in an accounting, the fiduciary must provide specific information regarding:
- all of the Decedent’s assets that came into the Fiduciary’s hands after death or later;
- show any income that has come into the estate;
- explain in detail all expenditures made, including all administrative expenses and distributions that have been made;
- set forth any paid and unpaid creditor’s claims; and,
- provide a schedule for how the remaining assets will be spent on further administrative expenses and distributed amongst the estate beneficiaries.
(Please note that accountings prepared in connection with estates (that is, ones prepared by executors or administrators) are different from those prepared in connection with trusts and those in connection with guardianships, so fiduciaries preparing those types of accountings should familiarize themselves with the forms and rules related to those types of accountings.)
Accountings can be prepared voluntarily, pursuant to SCPA 2208, can be compelled by an interested party, pursuant to SCPA 2206, or can even be ordered by the Court, pursuant to SCPA 2205, where the Court finds that preparation of an accounting in the best interests of the estate.
Why would You Compel An Accounting?
Parties tend to petition to compel an accounting where the fiduciary has: withheld information, engaged in some sort of wrongdoing, or is suspected of engaging in wrongdoing.
For example, where a beneficiary under the decedent’s Will believes that the fiduciary is stealing estate funds, that fiduciary might petition to compel an accounting. Similarly, where a lot of time has passed since the Decedent’s death and the estate beneficiaries have not received their entire share under the will, they might commence a proceeding to compel an accounting.
Who may Petition to Compel an Accounting?
SPCA 2205 sets forth a number of individuals and entities that may petition to compel an accounting, including, among others:
- a person interested in the estate,
- the fiduciary of a deceased person interested, and
- a successor fiduciary after letters have been revoked from his predecessor.
SCPA 103 provides a definition for a “person interested,” which definition includes beneficiaries of the estate. Since Ken is a beneficiary of the estate, he can commence a proceeding to compel an accounting. Although a “person interested” does not include a creditor of the estate, SCPA 2205 specifically authorized a creditor to compel an accounting.
How do you commence a proceeding to compel an accounting?
You prepare a Petition to Compel an Accounting, along with a Citation, and any supporting documents, such as any additional affidavits that are needed to supply extra information and exhibits that support your arguments. The Petition should provide your name, your relationship to the decedent, the name and date of death of the decedent, state when letters were issued by the Court; set forth reasons why you are seeking to compel an accounting, and provide the names, addresses, and natures of interest of each of the persons entitled to notice. In addition to requesting that the Court compel an accounting, the Petitioner should set forth any additional relief he is seeking, such as the removal of the fiduciary and appointment of a successor.
The Petitioner should file these documents with the Court. The Court will issue the Citation and provide a date for the return date. The Petitioner then needs to have the Citation served on all parties named on the citation. Citation must be served personally upon anybody in the state of New York and can be served by registered mail, return receipt requested, onto anybody outside of New York. After serving the Citation, the Petitioner needs to file an Affidavit of Service with the Court. Click here for a sample Petition.
What Happens at the Return Date?
At the return date, the Court will check to make sure that jurisdiction is complete (that is, whether all the parties entitled to be served with Citation, were indeed served with the Citation). Once the Court is satisfied that Jurisdiction is complete, the Court may also schedule a court conference if the parties have appeared. If the parties wish to have a court conference, they might be able to do so that day. During the conference, the petitioner and the fiduciary may enter into a stipulation, in which the fiduciary consents to file the accounting. In the stipulation, the parties will usually agree to a time period for rendering that accounting and may even waive certain rights and consent to what consequences the fiduciary will face if he fails to file that accounting.
Alternatively, if this does not happen, the Court may, thereafter, order the fiduciary to account. Either way, the fiduciary must comply with the order or stipulation and render the accounting in accordance with the provisions set forth in the order or stipulation.
The Court will then issue an Order directing the fiduciary to account. You must serve Notice of Entry of that Order and deliver, by personal service, a Certified Copy of the Notice of Entry of the Order Directing Fiduciary to Account to that fiduciary. Do not serve the Fiduciary’s attorney. The delivery of the Certified Copy of the Accounting starts the clock for the Petition to hold the fiduciary in Contempt in the event that the Fiduciary does not account in time.
We can assist you Compel an Accounting and obtain related Relief after the fiduciary has accounted.
For more information, please contact Guardianship, probate and estate planning attorney Regina Kiperman:
Or visit her at her office:
80 Maiden Lane
New York, NY 10038
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