Relates to settlement of account by a resigning fiduciary; requires the petition show the facts upon which an application to resign is founded.
TITLE OF BILL: An act to amend the surrogate's court procedure act, in relation to the settlement of account by a resigning fiduciary
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Surrogate's Court Advisory Committee.
Assuming there are no persons interested in an estate or trust who are under a disability (see SCPA 103 (40)), a fiduciary may settle an account by formal judicial process (e.g., judicial accounting) whether voluntary or compulsory - or by the nonjudicial settlement by receipts and releases, or by filing an instrument under SCPA 2202 and 2203 (which provide for the recording of instruments settling an account).}.Absent a provision otherwise in the governing instrument, subdivision 8 of section 315 of the SCPA provides that virtual representation applies to the nonjudicial settlement of an account.
The procedure on an informal account is for the fiduciary to prepare an account that is sent to the persons interested together with receipts and releases. Following the return of the receipts and releases, the fiduciary may distribute the estate or trust and then close it. An agreement to informally settle a fiduciary's account will constitute a full settlement discharging the fiduciary and binding the parties provided: (1) all those who would be necessary parties to a judicial accounting sign the agreement; (2) the fiduciary has made full disclosure; and (3) all signatories are adult and competent.}.
Today, the preferred method to settle an estate or trust is by an informal account and receipts and releases executed by the persons interested. The informal settlement of an account usually saves time and money, and may also foster family harmony. In light of this shift in practice, it is proposed that sections 715 and 716 of the SCPA be amended to remove any requirement that a resigning fiduciary seek to file a judicial account. This measure merely removes the requirements and is not intended to usurp the Surrogate's authority to exercise his or her discretion to direct the filing of a judicial account.
This act shall take effect immediately and shall apply to estates of decedents dying on or after such date.
None. New proposal.
1.Groppe et. al" Harris 6th Edition: New York Estates: Probate, Administration and Litigation, § 18:99 - 18:109.
2.See, Matter of Goldstick, 177 AD2d 225 (1" Dept 1992); Warren's Heaton on Surrogate's Practice § 94.02.
STATE OF NEW YORK ________________________________________________________________________ 4272 2013-2014 Regular Sessions IN SENATE March 18, 2013 ___________Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the surrogate's court procedure act, in relation to the settlement of account by a resigning fiduciary THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 715 of the surrogate's court procedure act is amended to read as follows: S 715. Application by fiduciary for permission to resign A fiduciary may present to the court at any time a petition praying that he OR SHE be permitted to resign, that his OR HER letters be revoked and that he OR SHE be permitted to
[file and proceed to the judicial settlement of]SETTLE his OR HER account JUDICIALLY OR INFORMALLY as such fiduciary [within a time to be fixed by the court], and that notice of the application be given to the persons and in the manner directed by the court. The petition [must]SHALL show the facts upon which the application is founded. S 2. Section 716 of the surrogate's court procedure act, as amended by chapter 503 of the laws of 1980, is amended to read as follows: S 716. Proceedings thereupon If it shall be determined that the petition should be granted, an intermediate order may be entered forthwith or at any time during the pendency of the proceeding, permitting the petitioner to resign, revok- ing his OR HER letters, or removing him OR HER, appointing a successor, and directing the resigning fiduciary to turn over all assets in his OR HER hands to his OR HER successor and [file]SETTLE his OR HER account [and a petition for the judicial settlement thereof and proceed to have it judicially settled]JUDICIALLY OR INFORMALLY. The proceedings there- upon, whether or not the letters of the petitioner be revoked or he OR SHE be removed, must be the same as upon a petition for the judicialEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09331-01-3 S. 4272 2
settlement of the petitioner's account, except that the successor fidu- ciary, if one shall have been appointed, shall be a necessary party to it. Upon the resigning fiduciary fully accounting and paying over all money which is found to be due from him OR HER and delivering over all books, papers and other property in his OR HER hands to his OR HER successor, or in such manner as the court directs, a decree may be made discharging him OR HER accordingly. S 3. This act shall take effect immediately and shall apply to estates of decedents dying on or after such date.