A fiduciary charged with overseeing the affairs of an estate, such as the executor, representative or administrator, must safeguard the assets on behalf of the beneficiaries. In New York, if the fiduciary believes assets have been misappropriated, a legal proceeding known as Surrogate’s Court Procedure Act 2103 (SCPA 2103) may be initiated. Estate planning attorneys explain this proceeding.
Among the duties the designated fiduciary for the estate of the deceased takes on are inventorying, collecting and preserving the assets in preparation for distributing them to the beneficiaries, in accordance with the protocols of the surrogate court (referred to as probate court in many states). If the fiduciary has any reason to believe that estate assets have been misappropriated, a 2103 proceeding may be needed. Edward Baker of Farrell Fritz offers this overview of the proceeding:
A SCPA 2103 proceeding has two phases. The first phase is the inquisitorial phase, which is the discovery portion of the proceeding. In essence the fiduciary is 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 existence or whereabouts of estate assets. If the court finds reasonable grounds for the examination, it will order that a respondent, or respondents, appear and subject themselves to examinations. In this regard SCPA 2103 is very broad in scope and has been likened to a licensed fishing expedition as a fiduciary need not have concrete evidence to commence the 2103 proceeding. Indeed, the proceeding may be instituted against any person having “possession or control” or “knowledge or information” about any property, or the proceeds or value thereof, which should be paid to the fiduciary. [SCPA 2103 (1)].
More details about SCPA 2103 are available here. Although the scope and standards for an SCPA 2103 are quite broad, there are limits to inquiries by fiduciaries—especially compared with the “fishing expedition” latitude allowed in the past. As attorneys note: “New York courts have made clear that they will not grant a fiduciary unfettered power in commencing a discovery proceeding. Significantly, there are a number of decisions holding that unless a petition for SCPA 2103 discovery seeks specific property or money that is in the possession or knowledge of a respondent, or with reasonable likelihood is in the possession or knowledge of the respondent, the proceeding must be dismissed.”
In other words, though an SCPA 2103 is sometimes necessary, it cannot be “unnecessarily intrusive.”
Given the significant trust placed in fiduciaries, they are often required to secure bonds guaranteeing their faithful performance. As a leading national bond provider, Colonial Surety helps personal representatives, executors, administrators and trustees in every state quickly and affordably obtain their bonds. The steps to obtaining a bond with Colonial are easy: get a quote online, fill in the information, and enter a payment method. Print or e-file the bond from anywhere, anytime.
Good To Know: Fiduciary?
It is helpful to know that when working with a lawyer on your estate plan, you will designate a “personal representative.” This is the fiduciary whom you trust to ultimately manage your affairs. Depending on the location and circumstances, your representative may be referred to specifically as an executor or administrator and if you create a trust, you will name a trustee. Despite the terminology subtleties and regional variations, personal representatives, executors, administrators and trustees share a common legal duty: they are fiduciaries who must avoid self-interest while acting in the best interest of the estate and its beneficiaries, in accordance with applicable state laws. Fiduciary bonds such as executor bonds, representative bonds, estate bonds, probate bonds, administrator bonds, guardianship bonds, conservator bonds or trustee bonds, are frequently required in court proceedings involving the affairs of decedents. Essentially, fiduciary bonds confirm the faithful performance of the court-appointed representatives in probate and surrogate courts. At Colonial, fiduciary and court bonds are available directly and digitally. Obtain fiduciary and court bonds here.
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