New York Probate Lawyer Blog
The New York Probate Lawyer Blog has published numerous articles concerning all aspects of probate, administration and Surrogate’s Court and estate matters. Most recently, an article was published on October 8, 2024 entitled “A Compulsory Accounting May Be Required for the Best Interests of an Estate”, which discussed the consideration by the Court of a compulsory accounting in the context of the best interests of an estate. As a recap, estate fiduciaries such as an executor or administrator are required to provide estate beneficiaries with an accounting of their fiduciary activities. An accounting is comprised of numerous schedules which contain itemized and detailed descriptions of the financial activities which took place during the course of the administration of a trust or an estate. These various schedules include lists and values of the assets received, income received, investments that were made, expenditures which were made and a statement of the balance of assets remaining on hand. There is also a schedule showing a computation of fiduciary commissions.
In cases where a fiduciary is not providing information to beneficiaries, a compulsory accounting proceeding can be filed with the Surrogate’s Court to request that the Court direct a fiduciary to file an accounting. Surrogate’s Court Procedure Act Section 2205 entitled “Compulsory account and related relief on a court’s own initiative or on petition; who may petition” and Section 2206 entitled “Compulsory account and related relief; proceedings thereupon” provide the provisions for implementing this procedure.
I recently had occasion in a Manhattan estate to file a petition for a client to obtain a compulsory accounting. The petitioner was the surviving spouse of a decedent. Since the petitioner was not named as a beneficiary in the decedent’s Last Will and Testament, a spousal right of election was filed with the Court. A right of election is provided for under Estates Powers and Trusts Law Section 5-1.1-A entitled “A Right of election by surviving spouse”. This statute allows a surviving spouse to receive one-third (1/3) of a decedent’s net estate.
The executor of the estate opposed the claim for the right of election and sought to have the petition dismissed at the outset of the proceeding. Essentially, it was asserted that the spouse did not have standing to obtain the benefits of EPTL 5-1.1-A since the decedent was not a New York domiciliary. As such, the New York right of election law would not apply. The decedent was originally from Russia but moved to New York years ago. The Court examined the many facts presented to it regarding the decedent’s connection to Russia and to New York, including that the decedent lived and worked in New York for many years, raised a family and owned an apartment in New York.
After reviewing these matters, the Manhattan Surrogate Hilary Gingold issued a Decision & Order dated October 7, 2024 in which the executor’s motion to dismiss the petition was denied. The title of the case was “Petition to Compel the Account of Elizaveta Malashenko.” The Court found that there were issues of fact and that the determination of domicile involved questions of both fact and law. The Court directed that the parties move forward with discovery.
As can be seen from the Malashenko case, there may be very complex issues which arise in various types of proceedings in the Surrogate’s Court. I have been representing clients in estate matters throughout New York for over forty (40) years. If you have an issue regarding an estate, Call Me Now for a free confidential review of your estate matter. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.