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MISCELLANEOUS PROCEEDINGS
Section 2101. General provisions. 2102. Proceedings for relief against a fiduciary. 2103. Proceeding by fiduciary to discover property withheld or obtain information. 2104. Inquiry; trial and decree. 2105. Proceeding to compel delivery of property by a fiduciary which is claimed by another or others. 2106. Proceeding for compromise of controversies between claimants to property or estates where interests of persons under disability or not in being are affected. 2107. Court may direct as to value, manner and time of sale of property and give advice and direction in extraordinary circumstances. 2108. Proceeding by fiduciary for continuation of a business. 2109. Money paid into court and securities taken; how disposed of. 2110. Compensation of attorneys. 2111. Ex parte application for advance payment of fees of an attorney-fiduciary or guardian ad litem. 2112. Compensation of persons acting under powers of attorney or other instruments. 2113. Proof or probate of heirship. 2114. Review of compensation of corporate trustee 2115. Review of costs of delegation by trustees S 2101. General provisions 1. All proceedings under this article and all proceedings within the jurisdiction of the court under 202 (a) May be commenced by a fiduciary, creditor or person interested. (b) May be entertained by the court or may be reserved for determination in an accounting or other proceeding or the court may decline to entertain the proceeding. All proceedings shall be deemed entertained unless rejected by the court in writing within 15 days of submission. (c) Shall be commenced by petition, or any other pleading directed by the court, stating the jurisdictional facts and the facts applicable to the particular relief sought. 2. The jurisdiction of the court over the proceeding shall be deemed to continue until a decree or order therein is fully satisfied. 3. If the petition or other pleading is entertained service of process shall be made upon all persons interested in the proceeding and upon such other persons as directed by the court except that in any proceeding against a fiduciary under 2102 service shall be made only upon the fiduciary unless the court otherwise directs. 4. In any such proceeding the court may grant appropriate relief, grant or deny the relief in whole or in part upon such terms as it deems proper and make such decree or order as justice shall require and may require a refunding bond. S 2102. Proceedings for relief against a fiduciary A proceeding may be commenced to require a fiduciary: 1. To supply information concerning the assets or affairs of an estate relevant to the interest of the petitioner when the fiduciary has failed after request made upon him in writing therefor. 2. To set apart and turn over exempt property to which a spouse or child is entitled or if it has been lost, injured or disposed of to pay the value thereof or the amount of injury thereto. 3. After reservation for the payment of the expenses of administration to pay the reasonable funeral expenses of a decedent if there are funds available for such payment. 4. To pay a claim which has been allowed, to deliver a specific bequest or property to a person entitled thereto or to pay a legacy, distributive share, interest in a trust or a claim for an administration expense, and when a trustee is unable to deliver personal property to the person entitled, to pay the value thereof. 5. To pay in advance to any beneficiary of an estate all or part of any beneficial interest to which he is entitled when the property of the estate applicable to the payment of debts, legacies and expenses exceeds by at least one-third the amount of all known claims, legacies having priority and beneficial interests of the same class and the beneficiary needs such payment for his support or education or of his family. 6. To comply with such directions as the court may make whenever two or more fiduciaries disagree with respect to any issue affecting the estate. 7. Pursuant to the provisions of paragraphs (d) and (e) of section 11-1.5 of the estates, powers and trusts law, to pay interest on general dispositions at the legal rate unless the court otherwise directs. ,il 0 S 2103. Proceeding by fiduciary to discover property withheld or obtain information 1. A fiduciary may present to the court which has jurisdiction over the estate a petition showing on knowledge or information and belief that any property as defined in 103 or the proceeds or value thereof which should be paid or delivered to him is (a) in the possession or control of a person who withholds it from him, whether possession or control was obtained prior to creation of the estate or subsequent thereto or (b) within the knowledge or information of a person who refuses to impart knowledge or information he may have concerning it or to disclose any other fact which will aid the petitioner in making discovery of the property or (c) he has reason to believe, in the possession or control of a person described in subparagraph (a) of this subdivision or within the knowledge or information of a person described in subparagraph (b) of this subdivision and praying that an inquiry be had respecting it and that the respondent be ordered to attend and be examined accordingly and to deliver the property if in his control. The petition may be accompanied by an affidavit or other written evidence to support it. 2. "Property" as used in this section shall include any and all personal or real property in which decedent had any interest, including choses in action, money deposited and all property rights of the depositor consequent on the deposit of money by a decedent, grantor or fiduciary or for his account with any authorized banking organization in respect of which the depositary claims no beneficial interest other than its proper costs, fees or expenses. 3. If the court be satisfied there are reasonable grounds for the examination it must make an order accordingly. If the petition does not pray for an inquiry or examination, the court may issue a citation to the person alleged to be in possession or control of the property to show cause why he should not deliver such property or its proceeds or value. 4. If it appear at any time that a person other than the respondent claims any interest in the property or the proceeds or value thereof the court may issue a citation to such person to show cause why he should not deliver the property if in his control or the proceeds or value thereof and why the court should not determine ownership and right to possession of such property. 5. Service of any order for attendance and examination of any person must be made by delivery of a certified copy thereof to the person or persons therein named and the payment or tender to each of the sum required to be paid to a witness as a subpoena fee. S 2104. Inquiry; trial and decree 1. Upon the return of the order, whether or not the respondent answers, the petitioner may examine him with respect to the allegations of the petition. If it appears thereon that an issue of title to any property as defined in 103 or the proceeds or value thereof is raised, if he has not theretofore done so, the respondent shall be directed to serve and file an answer accordingly, but the examination, if directed by the court, shall continue. When an issue of title is raised that issue shall be tried as a litigated issue. 2. Any claim of title to or the right to the possession of any property of the decedent or the estate must be made by verified answer. 3. If the possession of the property be denied, proof of that issue may be presented by any party. The court may in an appropriate case make an interim decree directing the delivery of property not claimed by verified answer and continue the proceeding for determination of any litigated issue. 4. If it appears that the petitioner is entitled to the possession of any property the decree shall direct delivery thereof to him or if the property shall have been disposed of or diverted the decree may direct the payment of the proceeds or the value of the property or may impress a trust upon the proceeds or make any determination which the supreme court might decree in following trust property or funds. 5. If it be determined that the petitioner is not entitled to the property or the proceeds or value thereof the court may determine the respective interests of the other claimants thereto. 6. If during the proceeding, other than a trial of issues raised by answer, a respondent is examined concerning any personal communication or transaction between himself and the decedent such examination shall not be deemed to be a waiver of the provisions of CPLR 4519. S 2105. Proceeding to compel delivery of property by a fiduciary which is claimed by another or others 1. A person having a claim to property as defined in 103 or the proceeds thereof alleged to be in the possession of or under the control of a fiduciary may present to the court which has jurisdiction over the estate a petition showing the facts and praying that the fiduciary be required to show cause why he should not be required to deliver the property or the proceeds thereof. 2. Process shall issue accordingly to the fiduciary. 3. Upon return of process the court must hear the proofs of the parties, determine the issues, and if claim shall have been made to the property or the proceeds thereof by a person or persons other than the fiduciary, the court shall determine the respective interests of the parties in the property or the proceeds or value thereof and make a decree accordingly. S 2106. Proceeding for compromise of controversies between claimants to property or estates where interests of persons under disability or not in being are affected 1. Where the interests of persons under disability or not in being are or may be affected (a) A fiduciary may petition for authorization to compromise any controversy between different claimants to the estate or property or portions thereof under administration in accordance with an agreement to which all parties in being claiming an interest in the estate affected by the agreement shall be parties in person or by guardian or committee. (b) The proponent or any party to a probate proceeding may petition to adjust by compromise any controversy existing or which may arise between the persons claiming under any will alleged to have been made by the decedent and any persons claiming as distributees of decedent or claiming to be entitled to a right of election or claiming pursuant to an agreement with the decedent or otherwise, in accordance with an agreement to which all such persons as are interested shall be parties, provided that persons named as executors to whom letters have not issued and persons whose interests are not affected by the proposed compromise are not required to be made parties. 2. A person under disability or a person not in being who has a future contingent interest is a necessary party and shall be represented by a guardian ad litem unless in the case of a person under disability his guardian, committee or conservator shall appear in his behalf. The guardian, committee or conservator so appearing or the guardian ad litem may execute in behalf of the person for whom he appears all proper instruments necessary to effect any compromise approved by the court. 3. If by the terms of the compromise money or property is directed to be held for the benefit of a person under disability or a person not in being it may in a proper case be deposited in court subject to the order of the court. 4. An agreement of compromise made as herein provided if found by the court to be just and reasonable shall be valid and binding upon the interests of persons under disability, persons not in being and all parties to the agreement. 5. An application for the approval of a compromise hereunder must be made by verified petition or, if made in a pending proceeding, by verified supplemental petition, which shall show the provisions of any instruments or documents under which claim is made to the property or estate in controversy, all facts concerning the identity and claims of the parties to the controversy, the possible contingent interests of persons not in being and the necessity for the approval of the compromise. 6. The court may entertain the application prior to the execution of the proposed compromise agreement by all the parties required to execute it and may permit its execution after the commencement of the proceeding by any person interested. 7. The court shall inquire into the facts and make such order or decree as justice shall require in any proceeding.
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Introduction to Wills
Introduction to Trusts
S 2107. Court may direct as to value, manner and time of sale of property and give advice and direction in extraordinary circumstances 1. Whenever the value of property of an estate is uncertain or dependent upon the time and manner of sale thereof a fiduciary may apply by petition to the court for advice and direction as to the propriety, price, manner and time of sale thereof. 2. The court may entertain applications by a fiduciary to advise and direct in other extraordinary circumstances such as complex valuation issues, or tax elections, or where there is conflict among interested parties, but need not entertain jurisdiction if to do so would be merely to substitute the court`s judgment for that of the fiduciary. 3. A substantial compliance with the authorization so given shall relieve the fiduciary from any objection that the estate suffered a loss on account of the action taken under court advice and direction. S 2108. Proceeding by fiduciary for continuation of a business A fiduciary may petition for the continuation of a business other than a profession, of which decedent or the person whose estate is being administered was sole owner and it is desired to continue it for the best interests of the estate; provided, however, that a fiduciary may petition for the continuation of a deceased dentist`s practice for a period not to exceed eight months, if such practice is continued by a person licensed to practice dentistry in this state. In such proceeding: 1. If the petition be entertained the court may make an intermediate order without notice authorizing continuance of the business pending the return of process and final decree. 2. Any respondent may serve and file an answer within 8 days after the return of process or such further time as the court directs. After inquiring into the facts and hearing the parties, if the court is satisfied the best interests of the estate require the continuation of the business, it may make a decree accordingly. 3. The decree may provide such restrictions, conditions or requirements and such incidental relief, including a direction or permission for incorporation of the business, as the court may order. 4. Whenever a fiduciary shall be authorized under this section to continue a business in other than corporate form the decree shall provide for the extent of the liability of the assets of the business and the assets of the estate apart from the assets of the business for debts and other liabilities arising out of its continuance. The court may make such directions in this regard as it deems advisable in the circumstances. The decree shall further provide for the period of time for continuance. 5. If under a decree granted under this section a fiduciary shall continue and carry on a business other than in corporate form he shall file a certificate of doing business under an assumed name pursuant to the provisions of section one hundred thirty of the general business law. The certificate shall include in addition to the other matters required by that section a statement showing the fiduciary capacity in which he is conducting and carrying on the business and the extent to which the debts and other liabilities incurred in the continuance are to be chargeable to the assets of the estate as provided in the decree. The fiduciary shall be relieved of personal liability if acting within the authority granted and having filed the certificate above provided, but shall be liable only in a fiduciary capacity. Any person having a claim, demand or cause of action arising out of or in connection with the conduct of the business after the filing of the certificate above provided shall thereafter be limited in the payment or satisfaction of such claim, demand or cause of action to such assets as are made available for the payment or satisfaction of debts and liabilities in the decree, provided, however, that nothing herein contained shall relieve the fiduciary from personal liability for the consequences of his own wrongful act or negligence in the continuance of the business and provided further that nothing herein contained shall render ineffectual any provision in a will or other instrument directing or permitting the continuance of a business. 6. Unless otherwise provided in the decree all funds collected and received in continuing and carrying on the business of a decedent shall at all times be kept separate and apart from the funds in the hands of the fiduciary forming part of the general assets of the estate as a whole. 7. Notwithstanding the foregoing provisions, any creditor or person interested may at any time apply to the court for an order requiring the fiduciary to discontinue and wind up the business and the court may thereupon make such order as to it appears for the best interests of the estate, the creditors and all persons interested. S 2109. Money paid into court and securities taken; how disposed of The provisions of CPLR 2601 to 2608 inclusive shall be applicable to property paid into court pursuant to an order or decree of this court. S 2110. Compensation of attorneys 1. At any time during the administration of an estate and irrespective of the pendency of a particular proceeding, the court is authorized to fix and determine the compensation of an attorney for services rendered to a fiduciary or to a devisee, legatee, distributee or any person interested or of an attorney who has rendered legal services in connection with the performance of his duties as a fiduciary or in proceedings to compel the delivery of papers or funds in the hands of an attorney. 2. The proceeding shall be instituted by petition of a fiduciary of the estate or a person interested or an attorney who has rendered services. The court may direct payment therefor from the estate generally or from the funds in the hands of the fiduciary belonging to any legatee, devisee, distributee or person interested. 3. In any event that any such attorney has already received or been paid an amount in excess of the fair value of his services as thus determined the court is authorized to direct him to refund the excess. 4. In any proceeding under this act or the estates, powers and trusts law in which the court determines the compensation of an attorney, the court shall consider the time and value of services performed by a person who is not an attorney, provided such services are performed under the supervision of an attorney and would, if performed by an attorney, be considered by the court in determining the attorney`s compensation. S 2111. Ex parte application for advance payment of fees of an attorney-fiduciary or guardian ad litem 1. At any time during the administration of an estate and irrespective of the pendency of a particular proceeding an attorney of this state who is a fiduciary, or guardian ad litem may present to the court from which his or her letters or appointment issued a petition praying that he or she be permitted to receive a sum on account of his or her compensation for legal services theretofore rendered to the estate or to the person under disability. No notice of the application shall be required, except that in the case of a guardian ad litem notice shall be given to any attorney or person who has appeared in the proceeding for which the guardian ad litem seeks an allowance. If the application be entertained, the court may award a sum on account of compensation or make such other order, if any, as justice shall require. The total expenses of the application shall be borne by the petitioner personally. 2. An attorney who is a fiduciary may take advances on account of compensation for legal services rendered to the estate, without application to the court if he shall have at least one co-fiduciary who is not rendering legal services to the estate and all co-fiduciaries have consented to such payment on account or if the instrument under which the attorney is acting permits him to take such payments on account in advance of the settlement of the account. 3. In all cases where any such payment on account of legal services has been taken by an attorney his or her account must disclose the fact and the amount of such payment. 4. The compensation of an attorney for legal services awarded or taken under this section may include compensation for the time and value of services performed by a person who is not an attorney, provided such services are performed under the supervision of an attorney and would, if performed by an attorney, be compensable under this section. S 2112. Compensation of persons acting under powers of attorney or other instruments 1. At any time during the administration of an estate and irrespective of the pendency of a particular proceeding the court is authorized either on its own initiative or on application by the fiduciary or a person interested to fix and determine the compensation, charges and expenses of a person acting under a power of attorney or other instrument described in EPTL 13-2.3 for services rendered to his principal, and to review and determine the validity and reasonableness of any such compensation, charge or expense, whether or not it has been fixed previously by agreement. 2. In the event any such person has already received or been paid a sum in excess of the fair and reasonable value of his services, charges and expenses as determined by the court the latter is authorized to direct him to refund the excess. A proceeding therefor may be commenced by the court on its own initiative or by the petition of a person interested. 3. Nothing contained herein shall be deemed to authorize the practice of law by an attorney in fact or other person acting under an instrument described in EPTL 13-2.3 who is not an attorney of this state. S 2113. Proof or probate of heirship 1. Where a person seized in fee of real property within the state dies intestate or without devising his real property, his distributees or any of them or any person deriving title from or through such distributees or any of them may present either to the court which has jurisdiction of the estate or to the court of a county where the real property or any part thereof is situated, a petition describing the property and showing the interest or share of the petitioner and of each distributee of the decedent in the property and praying for a decree establishing the right of inheritance thereto and that all the distributees of the decedent be required to show cause why the prayer of the petition should not be granted. Process must issue accordingly. 2. Upon the return of process the court must hear the allegations and proofs of the parties and determine the issues raised. The petitioner must establish (a) The fact of the decedent`s death. (b) His domicile at the time thereof. (c) His intestacy, either generally or as to the real property. (d) His distributees entitled to inherit the property. (e) The name, age, domicile and relationship to the decedent, of each, and (f) The interest or share of each in the property. 3. The decree determining the issues shall be recorded by the petitioner in the office of the county clerk or the register, as the case may be, of each county in which the real property is situate, as prescribed by law for recording a deed. S 2114. Review of compensation of corporate trustee 1. At any time during the administration of a testamentary or lifetime trust and irrespective of the pendency of a particular proceeding, the court may review the reasonableness of the compensation determined by the corporate trustee for the trustee`s own services. Any corporate trustee who has received excessive compensation from a trust may be ordered to make appropriate refunds. 2. A proceeding may be instituted by petition of a corporate trustee of the trust or any person interested in the trust. No accounting shall be required in such proceeding. 3. No trustee shall be liable or accountable for any commissions paid to another trustee hereunder which a court orders to be refunded to the trust or any person interested in the trust. S 2115. Review of costs of delegation by trustee 1. At any time during the administration of a trust and irrespective of the pendency of a particular proceeding, the court with jurisdiction of the trust may review the reasonableness of the costs of a delegation by the trustee under section 11-2.3 of the estates, powers and trusts law. 2. A proceeding may be instituted by petition of the trustee or any person interested in the trust. No accounting shall be required in such proceeding. 3. The court shall grant such relief as it deems appropriate under the circumstances. 4. The terms "trust" and "trustee" as used in this section are defined in section 11-2.3 of the estates, powers and trusts law.