SCPA 2205: Compelling an Accounting Surrogate's Court

A New York fiduciary is not required to account on their own initiative. Most estates are distributed against receipts and releases and no account is ever filed. SCPA § 2205 is the statute that changes that when someone wants it changed: it authorizes the Surrogate’s Court, on the petition of a person interested in the estate or on its own motion, to order an executor, administrator, trustee or other fiduciary to file an intermediate or final account within the time the court sets. The statute does not decide whether the fiduciary did anything wrong. It opens the books, and the judicial accounting that follows is where that question is answered. This page explains what § 2205 provides, who may invoke it and when, what the court orders, how the order is enforced, the sections that surround it, and what we have learned from using it. It is part of our trust and estate accounting section.

What SCPA 2205 Provides

The section has two working parts. The first is the court’s power: the Surrogate’s Court may at any time, on its own initiative or on petition, direct a fiduciary to file an intermediate or final account within a stated time and in the manner the court directs. The word is “may.” Compelling an account is in the court’s discretion, and the court considers how long the fiduciary has served, whether the seven-month period for creditors’ claims has run, and whether an account at this point would serve a purpose. Once those conditions are met the account is ordered almost as a matter of course.

The second part is standing: the list of persons who may petition. The list is inclusive, and the categories overlap, but a petitioner outside them will be dismissed without reaching the merits.

The section reaches every fiduciary within the Surrogate’s jurisdiction: executors and administrators, including the Public Administrator; trustees; guardians of a minor’s property; and their successors. It reaches a fiduciary who has already distributed and been released by some beneficiaries but not others, and a fiduciary whose letters have been revoked.

Who Has Standing to Petition

• A person interested in the estate. Beneficiaries under the will, distributees in an intestate estate, and beneficiaries of a trust, including remainder beneficiaries whose interest has not yet come into possession. This is the usual petitioner. A residuary beneficiary always qualifies. A specific legatee who has been paid generally does not, because the account cannot change what they received; one who has not been paid may petition, though the more direct remedy is a petition for payment of the legacy.
• A creditor whose claim has been presented and not paid or rejected. Creditors have seven months from letters to present claims under EPTL 11-1.5, and a creditor left unpaid after that has an interest in what the estate holds.
• A co-fiduciary, who may compel an account from the other, and a successor fiduciary, who needs the account of the predecessor to know what was received.
• The fiduciary of a deceased person interested: where a beneficiary died before receiving their share, the executor of the beneficiary’s own estate steps into their place.
• The Public Administrator, where the Public Administrator has an interest in the estate or is the successor fiduciary; a guardian or other person acting for a minor or a person under disability; a surety on the fiduciary’s bond; and the Attorney General on behalf of charitable beneficiaries.
• The court on its own motion. A Surrogate who sees an estate open for years with no account, or learns of a problem in another proceeding, can order the account without a petition.

Standing is decided on the will or the intestacy statute, not on whether the petitioner’s suspicions are well founded. A petitioner need not allege wrongdoing; the demand and the silence are enough.

Timing

A beneficiary’s petition is ordinarily entertained once seven months have passed since letters issued, because that is the period creditors have to present claims and a fiduciary cannot safely distribute, or usefully account, before it closes. A petition filed earlier will be denied as premature unless there is a reason: assets being dissipated, a fiduciary who cannot be found, a sale to an insider. The court can also order an intermediate account under SCPA § 2210 for the period to date where the administration is long, a will contest or kinship dispute is delaying the end, or the fiduciary has been removed.

There is no limitations period that a silent fiduciary can rely on. The time to compel an account does not begin to run until the fiduciary openly repudiates the obligation or the fiduciary relationship ends. A trustee who has served for twenty years without accounting can be compelled to account for all twenty. Delay is still costly, because bank records become unobtainable and assets pass to third parties.

The Relief

The order directs the fiduciary to file an account in the form prescribed by SCPA § 2208, the schedules used in every New York accounting, together with a petition for its judicial settlement, within a set time. The petition for settlement is the same one a fiduciary files voluntarily under SCPA § 2206; the difference is only that the court has directed it. Thirty to sixty days is the common deadline; longer is given for a large or long administration when asked for on the return date with a reason. The order can also direct the fiduciary to bring the account down to a specific date, to account for a particular fund, or, where the fiduciary has been removed, to account to the successor.

What the order does not do is remove the fiduciary, restrain them, or decide anything about their conduct. Those are separate relief, and a petitioner who needs them asks for them in the same papers or by a separate application.

Procedure

1. Written demand. Not required by the statute, but expected by the court. A letter requesting an account with the supporting records, and a reasonable time to respond.
2. Petition. Filed in the Surrogate’s Court that issued the letters. It sets out the decedent or trust, the fiduciary, the date of letters, the petitioner’s interest, the demand and the failure to respond, and the relief sought. The filing fee is modest compared to the fee later payable on the account.
3. Citation. The court issues a citation directing the fiduciary to show cause on a return date why the account should not be ordered. It is served personally within New York unless the court directs otherwise.
4. Return date. The fiduciary consents, defaults or opposes. Opposition is usually a standing objection, a release signed by the petitioner, or prematurity, and is decided on the papers. Absent a good reason the order is signed.
5. The account. Filed with a petition for judicial settlement. Every interested party is cited to it. Each may examine the fiduciary under oath under SCPA § 2211 and demand the records behind the schedules, and may file objections by the return date under SCPA § 2209. A decree settles the account and binds everyone cited.
6. Enforcement. If the account is not filed by the deadline, the petitioner moves for contempt and for revocation of letters under SCPA § 711.

The proceeding as a whole, from the beneficiary’s side, is described on compelling an accounting and when an executor refuses to account.

Related Sections

Two other tools sit beside § 2205. The Surrogate’s Court Procedure Act provides a narrower proceeding to compel a fiduciary who has ignored a written request to supply information about the assets or affairs of the estate, useful when the question is specific and an account would be more than is needed. And where property was taken before death or is held in someone else’s name, an accounting cannot reach it; a discovery proceeding under SCPA 2103 does.

Enforcement

A fiduciary who fails without excuse to file by the deadline can be held in contempt, fined, and in the extreme case committed until they comply. Failure to account when ordered is a ground for revoking letters under SCPA § 711, and the court can suspend a fiduciary immediately where the assets are in danger. A successor, often the petitioner or the Public Administrator, takes control of the estate and pursues the removed fiduciary and any surety. A compelled fiduciary frequently forfeits some or all of the commission, and where the refusal was in bad faith the court may charge the petitioner’s attorney’s fees against the fiduciary personally. See removing an executor.

An Example

A will gives the residue equally to three siblings; one is named executor and receives letters in June. Two years later the house has been sold, no distribution has been made, and the executor has stopped answering. One sibling sends a written demand in November; it is ignored. In January she petitions under SCPA § 2205. The executor defaults on the March return date, and the Surrogate orders a verified account within forty-five days. The account shows the house sold below its appraisal and a block of unexplained administration expenses. The sibling examines the executor under SCPA § 2211, obtains the statements and the closing statement, and objects, seeking a surcharge for both. Every step after the order depended on the order.

Practice Notes

• Confirm standing before filing. Read the will. A paid specific legatee, or a person cut out by a will that has been admitted, may not qualify.
• Look for a release. If the petitioner signed a receipt and release, the fiduciary will plead it as a complete defense. A release can be set aside for fraud or concealment of material facts, but that is a separate and harder proceeding. See receipts and releases.
• Do not file in the first seven months without cause. Ask, wait, and file when the period has run and the demand has gone unanswered.
• Ask for what you need in the same petition. If the assets are at risk, ask for suspension or a restraint; the order to account alone will not protect them.
• The order is the beginning. The account must be examined and objections filed by the return date of the citation on the account, or the account will be settled as filed and the decree will bind the petitioner. See objecting to an accounting.
• For fiduciaries: an informal account in the court’s format, delivered before the return date, usually ends the proceeding. The petitioner wants the numbers and the records. A fiduciary who provides them, with receipts and releases to sign, converts a compelled judicial accounting into an informal one at a fraction of the cost. See informal accountings.
• Trusts. The section applies to trustees equally, and the account covers the entire term of the trust or the period since the last settled account. See does a trustee have to account.

Talk to Us

If you need a fiduciary compelled to account, or you are a fiduciary who has been served with a citation under SCPA § 2205 and needs the account prepared, we can tell you what the next step is and what it will cost. We practice in the Surrogate’s Courts of New York City, Long Island and Westchester. Call 212-233-1233 or email [email protected].