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#DUTY TO INFORM TRIAL#

The relief sought in the petition is also recited in the citation.Fixation of compensation of pre-deceased fiduciary.Remember, the petition is a formal pleading and unless you request relief, you may not get it.Interested parties вЂ“ list everyone, even fiduciaries and those who have consented the list of interested parties is a checklist for court personnel to make sure everyoneвЂ™s interest is protected in proceeding.Consider purchasing HotDocs for SurrogateвЂ™s Court forms, approved by the SurrogateвЂ™s Court and the Bar.

Pleadings and other Necessary Documents.Fiduciary of deceased fiduciaryвЂ™s estate.Virtual representation вЂ“ SCPA 315 SCPA 2210(14).Consider conflicts of even co-trustee who is not a co-executor where there is a conflict of interest, in fact, for some other reason.SCPA 2210(7) and (10) вЂ“ conflict of interests.Distributees, for beneficiaries where beneficiary died intestate.for charities, unknowns, or known beneficiaries who canвЂ™t be found Necessary Parties in Voluntary Accounting Proceeding.Executor/Trustee: want to adjourn proceeding or wants maximum time.PetitionerвЂ™s perspective: wants a court order compelling an accounting within specified time period: as short as a вЂњ30 day orderвЂќ or as long as a 90 or 120 day order.Usually, on the return date of the proceeding, the only issue for the court is the timing for filing the accounting.Practical effect of new statute: gives courage to Surrogates in some counties that were reluctant to grant broad relief against an errant fiduciary.If the fiduciary fails to account within the time frame ordered by the Court, the petitioner can either вЂњtake and state the accountвЂќ (SCPA 2206(3) or petition to have the accounting party held in contempt (SCPA 606/607).

Prepare citation in form that complies with new statute.

Comply with new statute and request all the relief permitted under the statute.

#DUTY TO INFORM TRIAL#

Fix a trial date to take and state an accounting.

Fix a trial date for removal of fiduciary whose letters are suspended.

Suspend a fiduciary who defaults on return date of application or who fails to file accounting.

Compulsory accounting proceeding under SCPA 2205.

In the case of intermediate accountings, at least one year passes, if court entertains proceedings.

Sale of real estate to pay debts, taxes, expenses or distributive shares.

Prerequisites to commencement of proceeding (SCPA 2208).

Other issues impacted, such as elective share notice that cannot be settled.

CanвЂ™t work out вЂњinformalвЂќ settlement of accounting by receipt and release agreement.

CreditorвЂ™s rights not resolved without accounting.

Examples of need to have judicial accounting:.

Bottom line: executor/trustee needs to be properly discharged before final distributions are made in estate or trust.

The statute of limitations to compel an accounting is six years (CPLR 213(1)) and will begin to run on the date the executor/trustee openly and unequivocally repudiates a Will/Trust ( Matter of Barabash, 31 N.Y.2d 76 (1972)

Need for finality вЂ“ statute of limitations generally does not run.

the perspective of the objectants/beneficiaries of estate/trust.

Compare with financial statements prepared for businesses/corporations.

#DUTY TO INFORM FULL#

Full receipts and disbursement accountings prepared pursuant to the rules of the Court.

SurrogateвЂ™s Court accountings are the least understood amongst litigants and the lay public.

Lauterbach Garfinkel Damast & Hollander, LLPД®mail: County Bar Association вЂ“ Trusts & Estates Section

Duty to inform