New York Probate and Estate Administration Lawyer Blog
In contested estate accountings, beneficiaries sometimes object because they believe the fiduciary failed to include estate property. But objections must be supported by evidence, not suspicion. In Matter of Asimov, the New York County Surrogate’s Court considered whether objections to an executor’s accounting should be dismissed where the objectant claimed that valuable books were missing from the estate, but offered no proof beyond conjecture.
Background facts
Ruth Asimov died on February 18, 2018. She was survived by three children: Eric Asimov, Nanette Asimov, and Daniel Asimov. Her will, dated December 26, 1993, was admitted to probate on April 30, 2018. Eric Asimov served as executor of the estate. On November 21, 2022, Eric filed a petition to settle his accounting for the period from February 18, 2018, through October 27, 2022.
Nanette consented to settlement of the account. Daniel filed objections.
The dispute focused on approximately 287 personally autographed or inscribed copies of books by Isaac Asimov, Eric’s paternal uncle. Daniel claimed that two complete sets of Isaac Asimov’s books belonged to the decedent, were worth approximately $475,000, and had been omitted from the accounting.
Eric moved for summary judgment dismissing Daniel’s objections and judicially settling the account. Daniel did not file opposition papers.
Issue
Could the objectant prevent settlement of the executor’s accounting based on claims that valuable books were missing from the estate, without submitting evidence to support those claims?
Holding
No. The court granted Eric Asimov’s motion for summary judgment and dismissed Daniel Asimov’s objections. The court found that Eric made a prima facie showing that the estate accounting was complete and accurate, while Daniel failed to submit evidence raising a factual issue.
Discussion
The court began with the standard for summary judgment. Summary judgment may be granted when there are no triable issues of fact and the moving party is entitled to judgment as a matter of law.
In a contested accounting proceeding, the fiduciary has the burden of showing that all estate assets have been accounted for and that the accounting is complete and accurate. A fiduciary can make that showing by filing an account supported by an affidavit attesting to its accuracy.
Once the fiduciary makes that showing, the objectant must come forward with evidence that places the completeness or accuracy of the account in question. Suspicion, speculation, or a belief that assets are missing is not enough.
Eric submitted evidence indicating that the estate assets were fully accounted for. He also addressed the books specifically. He stated that Isaac Asimov had given the decedent approximately 287 personally autographed or inscribed books during his lifetime, but that those books were not owned by the decedent at death and were not estate assets. According to Eric, when the decedent moved from her Long Island home to a one-bedroom apartment in Manhattan, she gifted those books to Nanette.
Daniel did not oppose the motion. He did not submit documents, witness testimony, appraisals, ownership records, or any other evidence showing that the books were estate property at the time of the decedent’s death.
The court held that Daniel’s objections were speculative and unsupported. Although Daniel claimed that the estate accounting omitted valuable books, he offered no proof beyond conjecture and suspicion. The court also noted that the parties had been given an opportunity to conduct discovery but did not do so despite a prior court order scheduling discovery.
Because Daniel failed to raise a triable issue of fact, the court dismissed his objections and granted Eric’s motion.
Conclusion
Matter of Asimov shows that objections to an estate accounting must be supported by proof. A beneficiary may suspect that estate property is missing, but suspicion alone will not prevent judicial settlement of an account. Once a fiduciary provides an accounting and affidavit showing that the estate assets have been accounted for, the objectant must produce evidence that calls the accounting into question. Anyone involved in a contested accounting, missing asset dispute, or fiduciary accounting proceeding should speak with an experienced New York probate attorney to understand what proof is needed and how to protect their interests.