A New York executor, administrator or trustee is not required to account until someone asks. When a beneficiary asks and the fiduciary does not answer, the Surrogate’s Court will order it: SCPA § 2205 lets a person interested in the estate petition to compel an accounting, ordinarily once seven months have passed since letters issued, and the court will direct the fiduciary to file a full account by a fixed date. A fiduciary who ignores that order faces contempt and removal. A compulsory accounting is not a finding that anything went wrong. It is the proceeding that opens the books so that question can be answered, and it leads directly into the judicial accounting where the answers are tested.
We bring these petitions for beneficiaries, distributees and creditors, and we prepare the accounts for fiduciaries who have been served with one, in the Surrogate’s Courts of New York, Kings, Queens, Bronx, Richmond, Nassau, Suffolk and Westchester counties. This page is part of our trust and estate accounting section.
Who May Petition
Standing is the threshold question, and it is decided on the will or the intestacy statute rather than on the merits. A petition to compel an accounting may be brought by:
- A beneficiary under the will, principally a residuary beneficiary, whose share depends on every receipt and expense. A specific legatee who has already been paid generally cannot compel a full account, because nothing in it can change what they received.
- A distributee of an intestate estate, who takes a share of the net estate under the intestacy statute.
- A beneficiary of a trust, including a remainder beneficiary whose interest has not yet come into possession.
- A creditor whose claim has been presented and not paid.
- A co-fiduciary or successor fiduciary, including a successor executor or trustee seeking the account of a removed, resigned or deceased predecessor.
- The fiduciary of a deceased beneficiary, where the beneficiary died before receiving their share.
- The Public Administrator, a guardian, or another person acting for a party who cannot act for themselves, and the Attorney General where a charity is a beneficiary.
- The court itself, on its own motion, which it exercises where an estate has sat open for years without a distribution.
Timing
Creditors have seven months from letters to present claims, and a fiduciary who distributes earlier does so at their own risk. For that reason a beneficiary’s petition to compel is ordinarily entertained once seven months have passed since letters issued. Before then the court will want a reason: assets being dissipated, a fiduciary who has disappeared, a sale that looks wrong. After then, a written demand that went unanswered is reason enough.
There is no outer limit that helps a silent fiduciary. The time to compel an account does not begin to run until the fiduciary openly repudiates the duty to account or the relationship ends, so a trustee who has said nothing for fifteen years can still be compelled to account for all fifteen. Waiting is still unwise, because records disappear and assets move. For a trust, see when a trustee refuses to account.
The Proceeding, Step by Step
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The written demand
The statute does not require it, but every Surrogate expects it. A letter to the fiduciary or the fiduciary’s lawyer requesting an accounting with the supporting records, and a reasonable time to respond. The letter and the silence that followed are the first exhibits to the petition, and a good share of demands are answered without one.
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The petition
Filed in the Surrogate’s Court that issued the letters. It identifies the decedent or the trust, the fiduciary, the date of letters, the petitioner’s interest, the demand and the non-response, and asks that the fiduciary be ordered to file an account and a petition for its judicial settlement. The filing fee is modest. A petitioner who also wants the fiduciary restrained or suspended asks for that relief in the same papers.
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The citation and return date
The court issues a citation directing the fiduciary to appear on a return date and show cause why an account should not be ordered. It is served on the fiduciary personally within New York unless the court directs otherwise. The return date is usually four to eight weeks out, depending on the court.
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The order
On the return date the fiduciary consents, defaults or opposes. Opposition is usually a standing objection or a claim that the petition is premature, and is decided on the papers. Absent a good reason, the court orders the fiduciary to file the account in the court’s schedule format under SCPA § 2208, with a petition for its judicial settlement, within a set time. Thirty to sixty days is common; more is given for a large or long administration, and the court expects the fiduciary to have started when the citation was served.
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Enforcement
If the deadline passes, the petitioner moves to hold the fiduciary in contempt and to revoke the letters under SCPA § 711, which lists failure to account when ordered as a ground for removal. The court can suspend the fiduciary at once where the assets are in danger, and appoints a successor, frequently the petitioner, who takes control of the estate and pursues the removed fiduciary. A fiduciary who had to be compelled often loses some or all of the commission as well.
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The judicial accounting
Once the account is filed the compulsory proceeding has done its work and the matter becomes a judicial settlement of the account. Every interested party is cited to the account; each may examine the fiduciary under oath under SCPA § 2211 and demand the records behind the schedules; objections are due by the return date under SCPA § 2209; and a decree settles the account and binds everyone cited. See judicial accountings.
The Fiduciary’s Responses
A fiduciary served with a citation to compel has a few realistic responses, and which one they choose usually determines how the rest of the matter goes.
Account now, informally
The best answer for a fiduciary with adequate records. The account is prepared in the court’s format and delivered to the petitioner with the backup before the return date. If the petitioner is satisfied, the petition is withdrawn or resolved by receipts and releases, and no judicial accounting follows. See informal accountings.
Consent and ask for time
A fiduciary whose records need assembling consents to the order and asks for a realistic deadline. Courts grant reasonable time when it is asked for on the return date with a reason; they do not grant it when it is asked for after the deadline has passed.
Oppose on standing or timing
Proper where the petitioner is a paid specific legatee, has signed a release, or filed within the seven months without cause. Not useful against a residuary beneficiary or distributee, who always has standing, and a losing opposition costs the estate money and the court’s patience.
Ignore it
The one response that converts a bookkeeping task into a contempt and removal problem. Fiduciaries who choose it are usually those whose records will show commingling or personal expenses, and the court draws the inference.
Cost and Timeline
| Stage | Typical time | What it costs |
|---|---|---|
| Written demand | Two to six weeks for a response | Little; often the whole matter |
| Petition to order | Two to four months, depending on the court’s calendar | Filing fee plus attorney’s time at $600 per hour |
| Account filed | Thirty to ninety days after the order | The fiduciary’s cost of preparation, payable from the estate if the account is proper |
| Judicial accounting, uncontested | Six months to a year to decree | Estate expense |
| Judicial accounting, with objections | A year to two, most of it in discovery; most settle | Hourly, or contingency for a strong objectant’s case in a large estate |
Where the fiduciary’s refusal was in bad faith the court can charge the petitioner’s attorney’s fees against the fiduciary personally rather than the estate, and a sustained objection ends in a surcharge paid from the fiduciary’s own money. See surcharge.
When an Informal Accounting Resolves It Faster
A compulsory accounting is a means, not an end. What the petitioner wants is the numbers and the records; what the fiduciary wants is to be done. Both are served faster by an informal account in the court’s format, delivered with the statements, the closing statement and the invoices, than by a judicial accounting that reaches the same schedules a year later at the estate’s expense. Most compelled fiduciaries, once they understand that the account will be ordered anyway, choose to prepare it and send it before the return date, and most petitioners, once they have the records, either sign a release or narrow the dispute to the two or three entries that matter. The judicial accounting is for the cases where the records show a real problem, or where a beneficiary cannot sign a release because they are a minor, unknown or a charity.
The account we prepare for a fiduciary is built in the court’s format from the start, so that an informal account can be filed judicially without being redone if a beneficiary will not sign. See how a New York estate accounting is prepared.
An Example
A father dies leaving a will that divides the residue between a son and a daughter and names the son executor. Letters issue in March. The son sells the co-op that autumn, deposits the proceeds in the estate account, and stops returning his sister’s calls. The following February, eleven months after letters, she writes asking for an account; there is no reply. In April she petitions under SCPA § 2205. On the June return date the son’s lawyer appears, consents, and asks for ninety days. The account, filed in September, shows the co-op sold for its appraised value, ordinary expenses, and a commission computed correctly under SCPA § 2307, but also $40,000 in cash withdrawals with no invoices. At the SCPA § 2211 examination the son cannot explain them. Objections are filed to that one schedule; the matter settles with the $40,000 charged against the son’s share. The petition took four months to produce the account. Without it there would have been no account at all.
Pitfalls
- Filing without a demand. The court will ask whether you asked. Ask first, in writing.
- Filing too early. Within the seven months, and without evidence of danger to the assets, the petition is premature.
- Having signed a release. A receipt and release is a defense to the petition unless the fiduciary concealed something material. See receipts and releases.
- Stopping at the order. The order produces an account; it does not review it. Objections are due by the return date of the citation on the account, and an account not objected to is settled as filed.
- Expecting removal. Compelling an account does not remove the fiduciary. Removal under SCPA § 711 is separate relief and must be asked for, with grounds.
- For fiduciaries: waiting for the order to start. The court’s deadline assumes you began when you were served. An account takes weeks to assemble properly.
Talk to Us
If a fiduciary has ignored your request for an accounting, we can send the demand, file the petition and examine the account when it arrives. If you have been served with a citation to compel, we can have the account prepared before the return date. Call 212-233-1233 or email [email protected].
