When a person dies, everything they owned is supposed to pass into the estate and out to the beneficiaries. Often some of it does not. A bank account was emptied under a power of attorney in the last year of life; a joint account is claimed by the child whose name was added for convenience; the jewelry is in a relative’s safe. SCPA 2103 is the Surrogate’s Court’s tool for getting that property back. It lets the executor or administrator compel the person holding the property to appear, answer questions under oath and produce records, and if that person claims to own the property, it lets the Surrogate decide who does. We bring these proceedings for fiduciaries throughout New York. This page explains who can bring one, what can be recovered, how the two phases work, the defenses respondents raise and the rules that decide most of these cases.
The statute and its two companions
SCPA 2103 authorizes a fiduciary to petition for an order directing a person believed to be withholding, concealing or improperly retaining estate property, or information about its whereabouts, to appear and be examined. It is an inquiry: the point is to find out under oath what happened to the property. SCPA 2104 governs the next step. If the respondent claims title, the matter becomes a contested turnover that the Surrogate tries and decides. SCPA 2105 runs the other way: a person who says the fiduciary is wrongfully holding their property can bring a reverse discovery proceeding against the estate. Together the three sections let the court that is already administering the estate resolve who owns a specific asset.
A beneficiary who believes the fiduciary, rather than an outsider, is hiding something has a different remedy: a proceeding to compel an accounting. The related remedies section below sorts these out.
Who can bring it
The petitioner must be the fiduciary of the estate: an executor holding letters testamentary, an administrator holding letters of administration, a preliminary executor or temporary administrator appointed on an interim basis, or a successor fiduciary, including an administrator c.t.a. or d.b.n., who takes over and finds that the prior fiduciary or someone else diverted assets. A beneficiary who has not been appointed generally cannot bring the proceeding directly, but can petition to compel a reluctant fiduciary to act, or in the right circumstances seek their own appointment.
What can be recovered
The reach of the proceeding is broad. It covers bank and brokerage accounts transferred or drained before or after death; interests in real property, including deeds changed under questionable circumstances; personal property such as jewelry, art, collectibles, vehicles and household items; business interests, including shares and partnership stakes; cash and tangible valuables owned at death; funds taken through misuse of a power of attorney during the decedent’s lifetime; and information about where assets are, such as items kept at a friend’s house or in a relative’s safe.
Two fact patterns dominate. In the first, a caregiver, relative or attorney-in-fact moved the decedent’s money to themselves while the decedent was alive and unable to protect their own interests. In the second, the survivor on a joint account claims the balance passed automatically, while the estate says the account was set up only so that someone could pay the decedent’s bills.
The two phases
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The inquiry
The fiduciary petitions for an order directing the respondent to appear and be examined under oath about the property. The examination resembles a deposition: the respondent answers questions, documents are subpoenaed, and the fiduciary assembles a record of how and where the assets moved. A respondent cannot end the proceeding by denying possession; the courts have long held that the inquiry exists precisely to test that denial under oath. Where the fiduciary already has ample proof of where the property is, the inquiry can be shortened or bypassed and the case can go straight to turnover.
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The turnover trial
If the inquiry shows the respondent is holding property that belongs to the estate, the proceeding moves into a trial under SCPA 2104. The respondent asserts whatever defense or claim of ownership they have, and the court decides title. If the property belongs to the estate the court orders it delivered, or its value paid, to the fiduciary, and in an appropriate case awards interest and other relief.
The defenses respondents raise
| Defense | What the respondent must show |
|---|---|
| Gift | That the decedent gave them the property during life. A valid New York gift requires donative intent, delivery and acceptance. |
| Joint ownership or survivorship | That the property passed by operation of law, for example through a joint account with a right of survivorship. |
| Beneficiary designation | That they were named beneficiary of an account or policy that passes outside the estate. |
| Purchase, compensation or repayment | That the property was bought for value, earned for services to the decedent, or transferred to satisfy a debt, with records of the transaction. |
| Limitations or laches | That too much time has passed, or that the estate’s delay has prejudiced them. |
| Lack of jurisdiction | That the Surrogate’s Court lacks subject-matter or personal jurisdiction, for example because the respondent lives out of state. |
Clean, contemporaneous records help respondents; missing or inconsistent records help petitioners. Where a confidential relationship existed between the decedent and the respondent, the courts look at a claimed gift more closely and may require the respondent to prove that the transaction was fair and free of undue influence.
Burden of proof: the four rules that decide these cases
Most turnover trials turn on who has to prove what. First, the gift defense carries a heavy burden: a respondent claiming a lifetime gift must prove intent, delivery and acceptance by clear and convincing evidence, a standard New York applies because the alleged donor is not there to dispute it. Second, self-dealing by an agent is presumed improper. Transfers that an attorney-in-fact made to himself or herself are presumed improper unless the power of attorney clearly authorized them or there is independent proof of the principal’s donative intent; Matter of Ferrara, 7 N.Y.3d 244 (2006), is the leading case on the strict construction of gifting powers, and where any confidential relationship existed the recipient may have to prove affirmatively that the transfer was fair.
Third, Banking Law § 675 gives a surviving joint account holder a statutory presumption of survivorship, but the estate can rebut it with clear and convincing proof that the account was opened for convenience and not as a gift. Fourth, the Dead Man’s Statute, CPLR 4519, bars an interested witness from testifying about personal transactions or communications with the decedent. It often decides the gift defense outright, because the respondent may be barred from describing the conversation in which the gift was supposedly made. Anticipating CPLR 4519 at the pleading stage is one of the most important strategic decisions in a turnover case.
Convenience accounts
The joint account claimed by survivorship but allegedly opened only so a child or helper could pay bills is the most common SCPA 2103 fact pattern. The convenience theory is supported by evidence that the joint owner contributed nothing to the account and never used it for their own purposes; by the decedent’s statements during life that the joint name was for convenience; by the relative ages, health and family relationships when the account was opened; by an estate plan that made no other provision for the joint owner; and by timing, such as a name added shortly before a decline in capacity. These disputes are decided on the paper trail of how the account was opened and used, so the bank’s signature cards and account-opening records should be subpoenaed at the outset.
The fiduciary’s duty to pursue it
A fiduciary must collect and protect the estate’s assets. An executor or administrator who learns that property is being withheld is generally obliged to take reasonable steps to recover it, and one who does nothing can be held accountable by the beneficiaries for what was lost. The discovery proceeding is usually the most effective way to satisfy that duty, and it protects the fiduciary as well as the estate. In our experience the examination itself is often the turning point: a careful examination of the respondent produces the admissions that either settle the case or win the trial, and tracing the movement of assets through bank records, deeds and other documents is where the case is made.
Timing, cost and settlement
The proceeding can be brought at most stages of the administration, but sooner is better: assets get dissipated, records disappear and memories fade. The SCPA itself sets no single limitations period for a discovery proceeding; the underlying claim, whether conversion, fraud or breach of fiduciary duty, sets the clock under the CPLR, and the respondent will raise it.
An uncontested matter resolved at or soon after the examination can be over in several months. A genuinely contested turnover with full discovery and a trial commonly takes one to two years or more, depending on the court’s calendar and the volume of records. We handle these cases on an hourly basis. The main cost drivers are the number of respondents, the volume of bank and medical records to be subpoenaed, whether expert testimony on capacity, handwriting or valuation is needed, and whether the case settles after the examination.
Many do settle at that point, because the Dead Man’s Statute and the clear-and-convincing gift standard leave both sides with real risk. Typical structures are a partial return of the property in exchange for a release of the remaining claims; a cash payment to the estate with no admission as to ownership; structured payments over time where the respondent cannot pay at once; and mutual releases closing out all claims between the estate and the respondent, sometimes folded into the estate’s accounting.
Where the petition is filed
The petition goes to the Surrogate’s Court of the county administering the estate. The statute is the same statewide but practice varies. In the city the courts are New York County at 31 Chambers Street, Kings County at 2 Johnson Street in Brooklyn, Queens County at 88-11 Sutphin Boulevard in Jamaica, Bronx County at 851 Grand Concourse, and Richmond County at 18 Richmond Terrace on Staten Island. Manhattan and Brooklyn are high-volume courts where an early, well-documented petition and precise pleading pay off; the Bronx and Staten Island courts are smaller and more conference-driven. We also handle these proceedings in Nassau, Suffolk, Westchester and Rockland counties.
Related remedies
SCPA 2103 recovers assets held outside the estate. It is often used alongside a proceeding to compel an accounting when a fiduciary will not disclose what was done with estate assets; a claim for breach of fiduciary duty against an executor, administrator or trustee; and a petition for removal of a fiduciary who is unfit or self-dealing. For a common family fact pattern resolved through a turnover proceeding, see a sibling hiding a parent’s money.
Questions we are often asked
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What is the difference between SCPA 2103 and SCPA 2104?
SCPA 2103 lets the fiduciary compel the person holding estate property to appear and be examined. SCPA 2104 governs what follows if that person claims title: the issue is tried and the court decides who owns the property and whether it must be turned over. SCPA 2105 lets a person whose property the fiduciary is wrongfully holding bring a reverse discovery proceeding against the estate.
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What if the respondent says they do not have the property?
A bare denial does not end the case. The inquiry exists to examine the respondent under oath and review the records to find out.
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Who has to prove a gift?
The person claiming it, by clear and convincing evidence of intent, delivery and acceptance. That is a high bar when the donor has died and the Dead Man’s Statute may keep the recipient from testifying about the conversation.
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Can the proceeding reach assets taken before death?
Yes. Recovering funds or property taken during the decedent’s lifetime, typically through misuse of a power of attorney, is one of its most common uses. If the property belongs to the estate, the fiduciary may pursue it.
If you are a fiduciary who believes property belonging to a New York estate is being withheld, call us at 212-233-1233 or email [email protected]. We will review the facts, explain your options and set out a plan to recover the assets.
