Discovery Proceedings 

 

The goals of a discovery proceeding are to: (1) Determine whether assets of an estate or trust have been wrongfully diverted from it; and, (2)  If assets have been wrongfully diverted, to have them returned. 

 

A Fiduciary has a duty to collect all assets that belong to the decedent’s estate and has an obligation to make all necessary inquiries with respect to property that may belong to the estate or trust.  The Fiduciary is therefore generally the party that will initiate a discovery proceeding.


A Fiduciary, however, is not the only person who may bring a discovery proceeding. When a person with an interest in an estate does not believe that the fiduciary has made all necessary inquiries (or has refused to make such inquiries) into the estate's right to an asset, she may request permission from the Court for the authority to conduct the discovery proceeding herself.    This is especially true if the beneficiaries think the fiduciary is himself holding on to property that really belongs to the estate’s or trust’s. 

A discovery proceeding may be necessary where: 

  1. You want to inquire into the facts behind a gift made by the decedent prior to death, for example, to find out whether the decedent was competent to make such a gift when made or was pressured into the gift.    

  2. You want to inquire into the facts behind the addition of a beneficiary to a bank account or Totten Trust account. 

  3.  The value of an estate asset cannot be determined or simply has not been properly determined.

  4. You want to determine whether a power of attorney or guardian who controlled the decedent's assets has turned over all of those assets.