Edward Baker has made available for download his article titled “SCPA 2103 Proceedings – A Fiduciary’s Right to Commence a Licensed Fishing Expedition,” published in New York Trusts & Estates Litigation Blog. The article begins as follows:
A discovery proceeding pursuant to SCPA 2103 may be commenced by any legal representative of the estate, including a preliminary executor or a temporary administrator. An estate fiduciary has a duty to collect and preserve estate assets for the benefit of the beneficiaries of an estate. To this extent, when the fiduciary knows, or has reason to believe that assets of the estate have been misappropriated, or that someone has information about, or has a disputed claim to estate assets, a 2103 proceeding should be considered.
A SCPA 2103 proceeding has two phases. The first phase is the inquisitorial phase, which is the discovery portion of the proceeding. In essence the fiduciary is asking the Court for permission to examine, under oath, an individual, for the purposes of determining whether or not that individual has information relating to the existence or whereabouts of estate assets. If the court finds reasonable grounds for the examination, it will order that a respondent, or respondents, appear and subject themselves to examinations. In this regard SCPA 2103 is very broad in scope and has been likened to a licensed fishing expedition as a fiduciary need not have concrete evidence to commence the 2103 proceeding. Indeed, the proceeding may be instituted against any person having “possession or control” or “knowledge or information” about any property, or the proceeds or value thereof, which should be paid to the fiduciary. [SCPA 2103 (1)].
Posted by Anthony Tran, Associate Editor, Wealth Strategies Journal
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