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Petitioner Claims Co-Executor Failed to Account for Assets


Probate Lawyers said records revealed that in a probate proceeding in which a co-executor of the estate of deceased, he petitioned to judicially settle the account of the estate, the objectant appeals from an order of the Surrogate’s Court, which granted the motion for summary judgment dismissing certain objections to the account, and denied as untimely his cross motion for summary judgment. The decedent, died survived by his three sons. Co-letters testamentary were issued to each of the decedent’s sons. More than six years later, the first son filed an account of the distribution of the assets of the estate, and both of his brothers filed objections to the account. By notice of motion, the first son moved for summary judgment dismissing three of the objections which his brothers had raised. The subject objections alleged that the first son failed to account for three estate assets: (1) the decedent’s alleged 17.986% interest in a partnership, which owns a large commercial property; (2) the proceeds from the satisfaction of a mortgage held by the decedent against the property; and (3) the proceeds from the sale of a property owned by the decedent. On or about July 18, 2008, the appellant served a cross motion, for summary judgment in his favor on numerous objections, and opposed the other’s motion. The Surrogate granted the motion for summary judgment, and denied the cross motion as untimely. The court now modify.

The court held that in an accounting proceeding, the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate. “While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete”.

A New York Estate Lawyer said on the contrary to the Surrogate’s determination, the first son failed to make a prima facie showing that the decedent did not own an interest in the partnership at the time of his death. In support of his position that the decedent owned no interest in the partnership, he submitted, the partnership agreement and the affidavit of one of the entity’s partners. However, the first son also submitted a list of his late mother’s assets which he had prepared for the attorney handling her estate, which indicated that his parents owned a 17.986% interest in the partnership. In addition, a federal estate tax return for the estate of the his mother, signed by the decedent, included among her assets a 17.986% interest in the property owned by the partnership. Although the first son offered an explanation for the inclusion of his parents’ interest in the partnership, in his list of his mother’s assets, and for the inclusion of an interest in the property in the estate tax return, under these circumstances, his submissions were insufficient to sustain his prima facie burden of demonstrating the absence of any triable issues of fact.

However, Nassau County Probate Lawyers said the first son made a prima facie showing of his entitlement to judgment as a matter of law dismissing the objections based upon his alleged failure to account for the proceeds from the refinancing of the property mortgage and the sale of the other property by demonstrating that these transactions took place nearly three years before the decedent’s death and, thus, before the first son’s duty to preserve and account for the assets of the estate arose. In opposition, the appellant failed to raise a triable issue of fact as to whether any proceeds from the refinancing of the mortgage and the sale of the property remained at the time of the decedent’s death and were unaccounted for. Accordingly, the Surrogate properly granted those branches of the motion which were for summary judgment dismissing these objections. Furthermore, the Surrogate providently exercised her discretion in denying the appellant’s untimely cross motion for summary judgment in his favor on certain of his objections. The appellant failed to demonstrate good cause for the delay in filing his cross motion, and the grounds upon which it was predicated were not nearly identical to the grounds upon which the petitioner relied in moving for summary judgment.

A Staten Island Probate Lawyer said that the law provides some of the acts which every fiduciary is authorized to do such as but not limited to: “(1) To accept additions to any estate or trust from sources other than the estate of the decedent or the settlor of a trust. (2) To acquire the remaining undivided interest in the property of an estate or trust in which the fiduciary, in his fiduciary capacity, holds an undivided interest. (3) To invest and reinvest property of the estate or trust under the provisions of the will, deed or other instrument or as otherwise provided by law. (4) To effect and keep in force fire, rent, title, liability, casualty or other insurance to protect the property of the estate or trust and to protect the fiduciary. (5) With respect to any property or any estate therein owned by an estate or trust, except where such property or any estate therein is specifically disposed of: (A) To take possession of, collect the rents from and manage the same. (B) To sell the same at public or private sale, and on such terms as in the opinion of the fiduciary will be most advantageous to those interested therein. (C) With respect to fiduciaries other than a trustee, to lease the same for a term not exceeding three years and, in the case of a trustee, to lease the same for a term not exceeding ten years although such term extends beyond the duration of the trust and, in either of such cases. (D) To mortgage the same. (E) Any power to take possession of, collect the rent from, manage, sell, lease or mortgage, granted by this subparagraph (5), which is prohibited by the terms of the will, deed or other instrument or by the provisions of this subparagraph (5), nonetheless exists, upon the approval of the surrogate, where such power is necessary for the purposes set forth in SCPA 1902. (F) A fiduciary acting under a will may exercise all of the powers granted by this subparagraph (5) notwithstanding the effect upon such will of the birth of a child after its execution or of any election by a surviving spouse. (6) To make ordinary repairs to the property of the estate or trust. (7) To grant options for the sale of property for a period not exceeding six months. (8) With respect to any mortgage held by the estate or trust (A) to continue the same upon and after maturity, with or without renewal or extension, upon such terms as the fiduciary deems advisable; (B) to foreclose, as an incident to collection of any bond or note, any mortgage securing such bond or note, and to purchase the mortgaged property or acquire the property by deed from the mortgagor in lieu of foreclosure…”

Stephen Bilkis & Associates, with offices located throughout New York, is composed of legal teams who are familiar with the processes in the area, as regards will contest, estate administration, estate litigation, and the likes. Its Kings County Probate Lawyers, or its New York Estate Attorneys, ensure that they have the time for anyone who needs counselling or legal assistance involving matters of the estate.

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