Whether you’re a business owner, executive, or professional managing the affairs of a loved one’s estate—or you’re involved in a trust or estate dispute—one of the most critical responsibilities of an estate fiduciary is to identify, preserve, and recover estate assets. In New York, one of the most powerful legal tools available to achieve this is a discovery proceeding under SCPA § 2103.
But like all powerful tools, its use comes with boundaries.
What is an SCPA 2103 Proceeding?
This provision of New York’s Surrogate’s Court Procedure Act allows a fiduciary (executor, administrator, or temporary representative) to petition the court for help locating estate assets that are missing, misappropriated, or simply not being disclosed. These proceedings are critical in high-asset estates where the fiduciary suspects that someone has either taken control of or has information about property that rightfully belongs to the estate.
The fiduciary may ask the court to:
- Examine individuals under oath to determine if they possess estate property or information about it
- Compel the return of specific property or its value
- Determine rightful ownership and possession of disputed assets
Why it Matters for Estates of Business Owners and High-Net-Worth Individuals
If an estate includes business equity, real estate, investment accounts, or other significant assets, ensuring that every asset is properly identified and distributed as desired is not only a legal requirement—it’s essential to protecting a legacy. Whether the decedent’s business interest was jointly held, transferred before death, or concealed, an SCPA 2103 proceeding can be the key for the fiduciary (executor) to uncover what rightfully belongs to the estate’s beneficiaries.
The Power Behind the “Licensed Fishing Expedition”
Historically, courts have recognized the broad scope of SCPA 2103, often referring to it as a “licensed fishing expedition.” Why? Because fiduciaries don’t need hard proof before asking the court to investigate. A petition can be based on “knowledge or information and belief”—a lower threshold than what’s required in typical litigation.
Surrogates have acknowledged that fiduciaries, who may know little about the decedent’s financial affairs, should have room to inquire broadly to ensure that all of the decedent’s assets are identified and collected for distribution. Especially because a decedent can no longer clarify the location of assets, courts have permitted liberal discovery to ensure that nothing is left behind, either unknowingly or concealed by a third-party bad actor.
But Courts Are Now Drawing the Line
Despite the generous access SCPA 2103 affords fiduciaries, recent court decisions, especially from the Appellate Division, have clarified that this is not a license for baseless investigations.
In one case, the court emphasized that fiduciaries must identify specific property or show a reasonable likelihood that such property exists and is connected to the respondent (the person being investigated). Without this, the proceeding may be dismissed.
In short, a fiduciary cannot rely on mere suspicion or speculation to drag someone into court. The power to investigate is real—but it’s not unlimited.
What This Means for You
If you are the fiduciary of an estate containing substantial assets—or if you're involved in a dispute over estate property with a sibling, family member, or deceased’s former business partner—understanding how to properly initiate and/or defend against an SCPA 2103 proceeding is important.
At our firm, we routinely represent individuals and businesses in estate disputes where the stakes are high, including:
- Recovering business interests improperly transferred (or improperly taken) before death
- Uncovering undisclosed assets such as investment accounts, real estate, or intellectual property
- Defending clients accused of withholding estate assets
- Navigating the boundaries of discovery in estate litigation
Sophisticated Disputes Demand Sophisticated Counsel
Estate litigation is more than just paperwork—it’s strategy. Don’t rely on a generalist or a related book editor: you need an experienced litigator knowledgeable in business litigation and trust and estate disputes. If you’re navigating an estate involving significant income, equity, or complex relationships, you really need a litigation team that understands both the power and the limitations of proceedings like SCPA 2103.
At The Glennon Law Firm, we bring clarity to complexity—and we fight to protect what matters. Contact us today to schedule a confidential consultation. You may learn more about us and how we operate by visiting these pages: About Us and What Sets Us Apart.
To learn more about these topics, check out our Legalities & Realities® Podcast and other related blog posts, including:
- When Fiduciaries Fail: Understanding Suspension and Removal in Trust and Estate Disputes
- Advice and Direction: Empowering Fiduciaries to Make Confident Decisions
This blog post is for informational purposes only and does not constitute legal advice. For specific legal counsel, please contact our office directly.