How to Compel an Executor to Account in New York (SCPA 2205)

If an executor or trustee will not tell you what the estate holds, what was sold, or where the money went, New York law gives you a direct remedy: a petition in the Surrogate's Court to compel the fiduciary to account. The power comes from Surrogate's Court Procedure Act (SCPA) § 2205, and the procedure that follows is laid out in SCPA § 2206. This guide is written from the beneficiary's side of the table. If you want the broader picture of how a judicial accounting is litigated once it is filed, read our companion piece on accounting proceedings for New York fiduciaries.

What does it mean to "compel an accounting" in New York?

Compelling an accounting means asking the Surrogate's Court to order the executor, administrator or testamentary trustee to file a formal account of everything they have done with the estate or trust. SCPA § 2205 is titled "Compulsory account and related relief on a court's own initiative or on petition; who may petition", and its first subdivision sets out what the court can order.

Two phrases in that sentence matter to a beneficiary. First, the court may act "at any time", so the statute itself does not make you wait for the estate to close. Second, the order turns on whether it is "for the best interests of the estate", which is the showing your petition has to support with facts.

The account can be "intermediate or final". An intermediate account covers the fiduciary's conduct up to a point while administration continues; a final account covers the whole administration. For a long-running testamentary trust, an intermediate account is often the realistic request.

Who can petition to compel an executor or trustee to account?

A beneficiary of the estate can petition, because SCPA § 2205(2) lists "a person interested" among those who may ask the court for the order. The full list in subdivision 2 also includes a creditor, a public administrator or county treasurer, a person acting on behalf of an infant or an after-born child, the fiduciary of a deceased person interested, a surety on the fiduciary's bond, a successor or remaining fiduciary, a co-fiduciary who has filed his or her own account and petition, and the attorney-general where property may escheat to the state.

"Person interested" is a defined term. SCPA § 103(39) defines it this way:

The words "allegedly entitled" are significant. The same subdivision goes on to say that where the act lets a person interested apply for relief, "a verified allegation of an interest in fact, suffices for the purpose of the application, although the interest may be disputed", until the interest has been judicially determined. In practice, an executor cannot defeat your petition at the outset simply by saying you are not really a beneficiary.

Creditors are excluded from the definition of "person interested", but that does not leave them without a route: SCPA § 2205(2)(a) names "a creditor" separately as a permitted petitioner.

Does this cover trustees as well as executors?

It covers testamentary trustees, meaning trustees of a trust created by a will. SCPA § 103(21) defines "fiduciary" to include an executor, administrator and "testamentary trustee, to any of whom letters have been issued", among others. A trustee of a lifetime (living) trust who never received letters from the Surrogate's Court is not named in that definition, so whether and where to compel that trustee is a separate question we review on the documents.

What should a beneficiary do before going to court?

Start with a written, specific request to the executor or trustee for an informal accounting. Nothing in SCPA § 2205 requires this step, but it is usually the fastest and cheapest way to get information, and it builds the record you will need if the request is ignored.

1. Get the court file. Confirm which Surrogate's Court issued letters (for a Manhattan decedent, the New York County Surrogate's Court), the date letters were issued, and the name of the fiduciary. You need this to show the person you are asking is in fact a fiduciary.
2. Send a written request. Ask for a schedule of assets at date of death, all receipts and disbursements since, any sales of real estate or securities, fees paid to the fiduciary or professionals, and a proposed timetable for distribution.
3. Set a reasonable response date. Keep the tone factual. A judge reading your later petition will see this letter.
4. Keep everything. Save emails, partial statements and any explanations given. Inconsistencies in what the fiduciary tells you are often the most useful facts in a petition.

Many executors respond to a clear request. When they do not, or when the information they provide raises more questions than it answers, the petition under SCPA § 2205 is the next step.

What happens after a petition to compel an accounting is filed?

The court issues process to the fiduciary, and if the fiduciary does not respond appropriately, the court can order an account on a deadline. SCPA § 2206(2) provides that on the petition, process "shall issue to the fiduciary accordingly", and on the return date, if the fiduciary "fails to appear or to file an account or to show good cause to the contrary or to present a petition as prescribed in 2208", the court may direct the fiduciary to account "within the time and in the manner directed by the court".

The fiduciary's options at that point are limited. They can file the account, show good cause why they should not have to, or file their own petition for judicial settlement under SCPA § 2208. SCPA § 2206(3) addresses that last option directly: the pendency of your proceeding "does not preclude the fiduciary from presenting a petition as prescribed in 2208", and if they do so on or before the return of process, "the two proceedings must be consolidated."

What if the executor still refuses to account?

The court has escalating tools against a fiduciary who ignores the order. Under SCPA § 2205(1), the court may suspend a fiduciary who fails to file an account "within such time and in such manner as directed by the court", appoint "an eligible person to succeed a fiduciary whose letters have been suspended", fix a trial date for a hearing on removal, and fix a trial date "to take and state an account on behalf of a fiduciary who fails to file such account or procure its settlement".

SCPA § 2206(1) lets your petition request that relief up front. A petition to compel "may request multiple relief", including suspension or removal under SCPA §§ 711 and 719, immediate appointment of a successor, and having the account taken and stated on the fiduciary's behalf. If removal is where your case is heading, our guide on removing an executor or trustee in New York explains that side of the process.

That subdivision answers the question beneficiaries ask most often: a fiduciary cannot stall the case indefinitely by refusing to produce numbers. The court can build the account from the evidence the parties present.

What does a beneficiary actually get from a formal accounting?

A formal accounting gives you a sworn, court-supervised record of the fiduciary's administration and a forum to challenge it. Once the fiduciary accounts, SCPA § 2206(2) contemplates process requiring "all persons necessary to be served under 2210 to show cause why the account should not be judicially settled", which is the stage where interested parties can examine the account and object to it.

For a beneficiary, the practical benefits are concrete:

• Full disclosure. You see what came into the estate, what went out, and what remains.
• A record to object against. Unexplained transfers, self-dealing, excessive fees or unreasonable delay become specific line items rather than suspicions.
• A path to court-ordered relief. The court may "make such order or decree as justice shall require", in the words of SCPA § 2206(4).
• Movement toward distribution. A settled account is a step toward closing the estate, which matters when administration has stalled. Our article on how long probate takes in New York covers the ordinary timeline.

When is it the right time to compel an accounting?

The statute permits the order "at any time", but the petition still has to show that an account is "for the best interests of the estate". Facts that tend to support that showing include a fiduciary who will not answer written requests, distributions that have stalled without explanation, sales of estate property you learned about after the fact, commingling of estate and personal funds, or a co-fiduciary who has been shut out of information.

A petition filed with a documented history of unanswered requests reads very differently from one filed weeks after letters issued with no prior contact. That is one reason we recommend the informal request first, and why the letter itself should be precise. For background on how the Surrogate's Court and the SCPA fit together, see our SCPA guide to the New York Surrogate's Court.

Talk with Estate Law New York about compelling an accounting

If an executor or trustee is keeping you in the dark, Alan Vaitzman, Esq., Managing Attorney of Estate Law New York, can review the court file, the will or trust, and the correspondence you have, and tell you whether an informal demand or a petition under SCPA § 2205 makes sense. Our office is on the 17th Floor, 299 Broadway, New York, NY 10007. Schedule a free consultation.

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Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.