Executor Refuses to Provide an Accounting in New York – How to Compel One

An executor does not have to account until someone asks. Once a beneficiary asks, the executor must, and an executor who refuses has started a sequence that ends in a court order, and if the order is ignored, in contempt and removal. The sequence is short and the steps are fixed: a written demand; a petition to compel under SCPA § 2205 once seven months have passed since letters issued; the court’s order with a deadline; enforcement under SCPA § 711 if the deadline is missed; and then the account itself, which can be examined under SCPA § 2211 and objected to. This page walks through each step, what it costs and how long it takes, and what an executor who is refusing should understand about their own position. It applies to administrators equally, and is part of our estate accounting section.

Step One: The Written Demand

Send a letter or email to the executor, or to the executor’s lawyer, stating that you are a beneficiary and that you request an accounting of the estate with the supporting records. Give a date. Keep a copy. The demand is not a formality: it is what turns a fiduciary who has simply not gotten around to it into a fiduciary who has refused, and it is the first exhibit to the petition. A letter from a lawyer is answered more often than a letter from a beneficiary, because it makes clear that the next step is court.

Before treating silence as a refusal, ask what stage the estate is at. Creditors have seven months from letters to present claims, and an executor who distributes before then does so at their own risk, so beneficiaries are rarely paid, and rarely given a full account, in the first seven months. An executor who writes back that the house is under contract and the account will follow the closing is not refusing. An executor who does not write back at all is.

Step Two: The Petition to Compel Under SCPA 2205

SCPA § 2205 lets the Surrogate’s Court, on the petition of a person interested in the estate or on its own motion, order a fiduciary to account. A beneficiary’s petition is ordinarily entertained once seven months have passed since letters issued. It is filed in the Surrogate’s Court that issued the letters and states who you are, what your interest is, when letters issued, that you asked for an account and did not receive one, and that you want the court to order the executor to file one. The filing fee is modest. The court issues a citation directing the executor to appear on a return date and show cause why the account should not be ordered.

On the return date one of three things happens. The executor consents, and the court sets a deadline. The executor defaults, and the court sets a deadline. Or the executor opposes, usually on the ground that the petitioner lacks standing (a specific legatee who has been paid, or a person who signed a release) or that the petition is premature. Standing objections are decided on the will and the papers; a residuary beneficiary or a distributee in an intestate estate always has standing. See SCPA 2205 for the statute and compelling an accounting for the proceeding as a whole.

Step Three: The Court’s Order and Deadline

The order directs the executor to file an account in the court’s schedule format under SCPA § 2208, together with a petition for its judicial settlement, within a stated time. Thirty to sixty days is common; the court gives more where the estate is large or the administration long, and gives it grudgingly, because an executor who kept records can produce an account quickly and an executor who did not should have started when the citation was served. The account, once filed, becomes a judicial accounting: everyone with an interest is cited again, this time to the account, and objections are due by that return date under SCPA § 2209.

Step Four: Enforcement if the Order Is Ignored

An order to account is a court order, and disobeying it has consequences that a refusal to answer a letter does not.

• Contempt. A fiduciary who fails without excuse to file by the court’s deadline can be held in contempt, fined, and in the extreme case committed until they comply.
• Removal. Failing to account when ordered is a ground for revoking the executor’s letters under SCPA § 711. The court can suspend the executor immediately where the assets are in danger, and appoints a successor, often the petitioning beneficiary or the Public Administrator, who takes control of the estate and can pursue the removed executor for whatever is missing. See removing an executor.
• Commissions. An executor who has to be dragged into accounting frequently forfeits some or all of the commission under SCPA § 2307.
• Costs. Where the refusal was in bad faith, the court can charge the beneficiary’s attorney’s fees against the executor personally rather than the estate.

In practice, few executors let it get this far. The order is usually obeyed, late and with a request for more time, because the alternative is losing the appointment and the commission, and being replaced by the beneficiary who filed the petition.

Step Five: Examining the Executor Under SCPA 2211

When the account arrives, do not assume it is complete because it balances. SCPA § 2211 gives every party cited the right to examine the accounting fiduciary under oath, before objections are due, about every schedule, and to demand the records behind them: the estate bank and brokerage statements, cancelled checks, the closing statement on any sale, appraisals, invoices, tax returns, and the decedent’s own statements for the period before death that the executor obtained when marshaling the assets. The examination is where an account that lists $180,000 of “administration expenses” is taken apart line by line, and where an executor is asked on the record who received each check. See what the bank statements show.

What to Expect Once the Account Arrives

The account has a fixed shape, and each schedule is where a particular kind of problem lives. Schedule A is what the executor received; compare it to the inventory and the decedent’s last statements for assets left off or undervalued. Schedules A-1 and B are sales; compare the sale price to the appraisal. Schedule C is expenses; every entry should have an invoice, and personal expenses, unsupported legal fees and payments to the executor’s family are objections. Schedule E is distributions already made. Schedule G is what is on hand. Schedule I is the commission computation. See how an estate accounting is prepared.

Objections must be specific: which entry, on what ground, for what relief. A sustained objection ends in a surcharge, the court charging the executor personally with the loss to the estate, and can end in reduced or denied commissions. Most objections settle at a conference once the records are on the table; those that do not are tried before the Surrogate. See objecting to an accounting and surcharge. If the account is honest and the records support it, the right outcome is to say so, sign a receipt and release or let the decree issue, and be paid.

An accounting covers only what came into the estate. If the problem is money that left before death or sits in someone else’s name, the remedy is a discovery and turnover proceeding under SCPA 2103, brought by the executor, or by a beneficiary where the executor is the one holding the property.

Cost and Timeline

A demand letter costs little and is answered within weeks more often than not. A petition to compel, uncontested, runs from filing to order in roughly two to four months depending on the court’s calendar, and the account follows within the deadline set. If the executor contests standing or asks repeatedly for more time, add months. Once the account is filed, an uncontested judicial accounting reaches a decree in six months to a year; with objections, a year to two, most of it in discovery, and most contested accountings settle. Our fees for a petition to compel and for objections are hourly at $600; for a strong objectant’s case in a large estate we take the matter on contingency. Where the executor acted in bad faith, the court may shift the cost to the executor.

An Example

A will leaves the residue to three siblings and names one of them executor. Letters issue in June. By the following spring the house has been sold, no distribution has been made and the executor has stopped answering calls. A sister writes in April asking for an account; nothing comes back. In June, a year after letters and well past the seven months, she petitions under SCPA § 2205. The executor does not appear on the return date and the court orders an account within forty-five days. The account, filed late, shows the house sold for less than the appraisal and $60,000 in expenses without invoices. At the SCPA § 2211 examination the executor admits that some of the expenses were his own credit card. Objections are filed; the matter settles with the executor’s share reduced by the disallowed expenses and the commission waived. None of this would have happened without the petition, and all of it could have been avoided by an executor who answered the April letter.

If You Are the Executor Who Is Refusing

The request cannot be refused; it can only be answered now or later. Answering now means an informal accounting, prepared on your timetable, delivered with the records and closed by receipts and releases, at a flat fee in most estates. Answering later means the court’s deadline, the court’s format, an examination under oath, objections, and exposure to surcharge, loss of commissions, removal and, if the order is disobeyed, contempt. A commission of five percent on the first $100,000 and four percent on the next $200,000 is not worth losing, and a personal surcharge is paid from your own money, not the estate’s. If the records are imperfect, or some expenses were paid from your own account, or estate money passed through it, the account can still be prepared and the problems corrected before it goes out. That is far better than having them found. See what an executor should do when asked to account and defending an accounting.

Pitfalls

• Skipping the demand. The court expects to see that you asked. A petition filed without a prior request is granted less readily and looks like a first shot rather than a last resort.
• Filing before seven months without a reason. Unless the assets are in danger, the petition is premature.
• Missing the objection deadline. Once the account is filed and you are cited, objections are due by the return date. An account not objected to is settled as filed, and the decree binds you.
• Expecting the accounting to remove the executor. SCPA § 2205 forces disclosure; removal under SCPA § 711 is separate relief and has to be asked for.
• Having signed a release. A receipt and release is a defense to the petition, unless the executor concealed something material. Read what you sign. See receipts and releases.

Talk to Us

If an executor or administrator has ignored your request for an accounting, we can send the demand, file the petition and take the account apart when it arrives. If you are the fiduciary and the request is sitting on your desk, we can prepare the account before the petition is filed. We practice in the Surrogate’s Courts of New York City, Long Island and Westchester. Call 212-233-1233 or email [email protected].