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Compelling a Fiduciary to Account an Estate

Compelling a Fiduciary to Account an Estate

Q: My brother is the Executor of my mother’s estate. It has been three years since she died, and he has not distributed anything. What do you recommend I do?

A: I recommend that you demand that your brother to provide an accounting. This demand should be in writing. This accounting should show what he collected, what was paid out, how much is on hand and how he calculated your share. In the alternative, your brother could provide you with copies of all estate account statements and copies of his check register showing deposits and checks written. If you are satisfied after receiving the accounting or financial statements and he is willing to make distributions, this would end the matter. This is obviously the easiest and least expensive method. 

If your brother refuses to provide an accounting, your next step would be to compel him to account in the Surrogate’s Court. This is known as a Compulsory Accounting Proceeding. In this proceeding, the Court will order your brother to submit a formal accounting to the Court within a specified time. This accounting should detail all estate transactions in a format prescribed by the Court. Once your brother submits his accounting, you will have a chance to request documents and examine him in a deposition. If your questions are still not answered after this deposition, you can file objections to his accounting. These objections are your opportunity to detail the issues you have with the accounting. After filing objections, the matter proceeds as a contested matter and unless settled, the Court will issue a Decision. In this Decision, the Court will determine if your brother acted property as Executor and how the balance in the Estate will be distributed. If the Court finds that your brother did not act properly, he can be sanctioned. These sanctions could consist of a fine, reduction of his share to offset any mismanagement of assets or denial of commissions. 

It is always advisable to try to work things out informally with family, it can save the relationship and money. However, if you try to work it out informally and you do not get the answers you need, then an accounting proceeding in Surrogate’s Court is the next step to protect your inheritance. If you decide to proceed with the accounting, you should hire an attorney that is familiar with the issues and the procedures in Surrogate’s Court to properly defend your interests. 

-  Nancy Burner, Esq. & Kera Reed, Esq. 

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