Discovery Proceedings in Estate Administration

Discovery Proceedings in Estate Administration

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.

The 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.

This 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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