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Katya Sverdlov Blog

Saturday, May 25, 2019

It's been 3 years since my father's death and I have not received a penny from my sister who was the appointed Executor! Should I compel an accounting?

After an Executor gets appointed in an Estate, the Executor must fulfill his duties by timely marshalling of all assets, paying all known creditors and distributing the remaining money to beneficiaries. While this is what is supposed to happen, quite often it does not.


When should you petition the court to compel an Accounting by an Executor? You can do so when you believe that Executor has withheld information, or has engaged in some sort of wrongdoing (such as self-dealing or asset mismanagement). Stealing funds from the estate, selling estate property for an artificially low price, or not distributing any money for years are all good reasons to petition the court.


Who may petition the court to compel an accounting? SPCA 2205 lists individuals and entities who may petition. These include, among others: creditors, beneficiaries of the estate, fiduciaries of deceased beneficiaries, or successor fiduciaries after original letters of Administration have been revoked from the original one.


What is accounting by the Executor? It is a document prepared by the fiduciary to account for how the assets of the estate have been and will be used. Fiduciary must provide information about all decedent's assets that came into the estate, any income that has come into the estate, all expenditures made - including administrative expenses and distributions, set forth any paid and unpaid creditor's claims and provide a schedule for how the remaining assets will be distributed. The statutes that govern accountings include SCPA 2208 (voluntary), SCPA 2206 (compelled by an interested party), or SCPA 2205 (court ordered).


What must you do to petition the court? You need to prepare and file a Petition to Compel an Accounting. In addition, you should include supporting documents, such as affidavits, that provide information about the reasons why you believe an accounting is necessary. In the petition, you will need to list all the people that are entitled to notice of this proceeding. In addition, you should list any additional relief requested from the Court, such as removal of the original Executor and appointment of a Successor. Once all information is property submitted, the Court will issue a Citation and provide a return date. You will then need to have the Citation serviced on all parties named on the citation, and file an Affidavit of Service with the Court.


What happens at the return date? The Court will first check to see that all the parties entitled to be served with the Citation were actually served (jurisdiction is complete). Afterwards, the Court may schedule a conference between the parties (which may be held the same day) to see if a stipulation agreement can be reached. Alternatively, the Court may order an accounting by the fiduciary. The Executor must comply with the order or with stipulation, and provide an accounting in a timely manner that is specifically set by the Court. If the Fiduciary fails to do so, the Court will hold the fiduciary in Contempt and may remove and/or sanction them.  


Please contact Sverdlov Law PLLC at 212-709-8112 or ksverdlov@sverdlovlaw.com if you need help with an inheritance issue or any other estate administration questions.


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