Probate Lawyers said records revealed that in a probate proceeding in which a co-executor of the estate of deceased, he petitioned to judicially settle the account of the estate, the objectant appeals from an order of the Surrogate’s Court, which granted the motion for summary judgment dismissing certain objections to the account, and denied as untimely his cross motion for summary judgment. The decedent, died survived by his three sons. Co-letters testamentary were issued to each of the decedent’s sons. More than six years later, the first son filed an account of the distribution of the assets of the estate, and both of his brothers filed objections to the account. By notice of motion, the first son moved for summary judgment dismissing three of the objections which his brothers had raised. The subject objections alleged that the first son failed to account for three estate assets: (1) the decedent’s alleged 17.986% interest in a partnership, which owns a large commercial property; (2) the proceeds from the satisfaction of a mortgage held by the decedent against the property; and (3) the proceeds from the sale of a property owned by the decedent. On or about July 18, 2008, the appellant served a cross motion, for summary judgment in his favor on numerous objections, and opposed the other’s motion. The Surrogate granted the motion for summary judgment, and denied the cross motion as untimely. The court now modify.
The court held that in an accounting proceeding, the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate. “While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete”.
A New York Estate Lawyer said on the contrary to the Surrogate’s determination, the first son failed to make a prima facie showing that the decedent did not own an interest in the partnership at the time of his death. In support of his position that the decedent owned no interest in the partnership, he submitted, the partnership agreement and the affidavit of one of the entity’s partners. However, the first son also submitted a list of his late mother’s assets which he had prepared for the attorney handling her estate, which indicated that his parents owned a 17.986% interest in the partnership. In addition, a federal estate tax return for the estate of the his mother, signed by the decedent, included among her assets a 17.986% interest in the property owned by the partnership. Although the first son offered an explanation for the inclusion of his parents’ interest in the partnership, in his list of his mother’s assets, and for the inclusion of an interest in the property in the estate tax return, under these circumstances, his submissions were insufficient to sustain his prima facie burden of demonstrating the absence of any triable issues of fact.