By Adam J. Gottlieb
The duty of an
executor includes marshaling, or obtaining control over, the estate's
assets. In certain circumstances, the
executor cannot get control over all estate assets because another person may
have possession of an asset. If the
executor believes that another person has possession of an estate asset or
information about that asset, the executor may commence a discovery proceeding
under SCPA 2103 to attempt to discover the information and/or
obtain possession of the asset.
scope of a discovery proceeding can be extremely broad, and it has been likened
to a "fishing expedition," since the purpose of the proceeding is to learn
about and/or obtain assets that may have been hidden from the executor's
knowledge. As I alluded to above, there are two phases to a discovery
proceeding: (1) the inquisitorial phase, which permits the executor to inquire
as to the property at issue and the possession thereof by the respondent, and
(2) the hearing phase, which may be required if the respondent disputes the
ownership of the property at issue.
proceeding can be an important tool to obtaining information about the assets
of the decedent when another person is hiding an asset. For example, when a child of the decedent is
appointed executor of the parent's estate and another child is hiding an estate
asset, it is easy to see how a discovery proceeding may be needed in order for
the executor to get the information (or the asset) he or she needs to marshal
the decedent's estate assets.
Another tool in
this arena is a reverse discovery proceeding under SCPA 2105, which permits a person to seek information
and/or an asset itself from an executor who is hiding the asset from the
beneficiaries or creditors. To
understand the reverse discovery proceeding, just think of the same two
children of the decedent, except assume that the child who is hiding the
decedent's asset is the executor.
The results of a
discovery proceeding can lead the executor to an asset that previously was
hidden. That may be just that thing that
permits the executor to move on to another part of the estate administration.
. . . .
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