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  1. #1
    Join Date
    May 2013
    Posts
    5

    Default Can an Executor Be Prosecuted for Fraud when an Accounting is Not Properly Filed

    My question involves estate proceedings in the state of: my father. I would like to thank ProLaw for his advise some years ago. I have now won my case in Surrogates that resulted in a Court Order. I now have a Contempt of Court Order for the Executor failing to account for a distribution to the heirs.

    My question is the Court has ruled in my favor that the Executor did not meet her obligations by failing to file an accounting for a specific property that was sold in the estate. Since the court has ruled that she is "negligent", can I proceed with a fraud case in Surrogates or would I have to get a specific determination from Surrogates in order to proceed with a fraud case against the executor for 1) failing to provide an accurate accounting under her fidicuary obligations, or 2) fraud under her failing to provide the accounting under the Court Order?

    I have an upcoming court date for Contempt of Court against the executor and would like to know if I can file something at that time, or just speak before the court my assertions of fraud, which has already been made of record to some degree. The court has recognized her failure to provide a specific accounting as instructed in the earlier Court Order directing her to do so. There is a monetary distribution that she has not made which resulted in the Contempt of Court Order.

    Thanks for your assistance~

    - - - Updated - - -

    I just wanted to add the state in which this action is referring to is New York State. ~thank you~

  2. #2
    Join Date
    Sep 2005
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    Behind a Desk
    Posts
    98,846

    Default Re: Can an Executor Be Prosecuted for Fraud when an Accounting is Not Properly Filed

    Failure to provide an accounting is not an act of fraud. If you want to prove fraud, you'll have to prove culpable misuse or misappropriation of assets. Failure to provide an adequate accounting could be explained by laziness or incompetence, neither of which are crimes.

    Failure to provide required accountings does constitute grounds for you to ask the court to remove and replace her.

  3. #3
    Join Date
    May 2013
    Posts
    5

    Default Re: Can an Executor Be Prosecuted for Fraud when an Accounting is Not Properly Filed

    Mr. Knowitall~
    Thank you for your response. With that said, there absolutely is a misappropriation of assets, wherein she received more than her share from the sale of a property. There is a Stipulation Agreement which specifically states what she was entitled to. This SA was upheld by the Surrogates Court and she was Ordered to file an accounting for these specific funds. Since the estate has been probated, and assets sold, will I have any leverage with removing her now? I want to pursue a fraud case for the misappropriation of assets, which it seems should be clear in that she has spent more than she was entitled to, which is why the Court Order demands she file an accounting of the funds.

    If I decide on pursuing the fraud case will I need to start in Surrogates again, or go directly to Supreme, since the monetary value is higher than a civil action?

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