When an estate’s fiduciary believes that substantial assets have been wrongfully taken during a decedent’s lifetime or from the estate itself, the remedy is generally to commence a turnover proceeding pursuant to section 2103 of the Surrogate’s Court Procedure Act. After the property which the fiduciary has alleged had belonged to the decedent is identified , the respondent in the proceeding is obliged to establish that he or she has the right to remain in possession.

The Estate of Mary Fischer (reported on page 31 of December 9th’s New York Law Journal) is the story of a classic turnover proceeding. The estate’s temporary administrator, together with the United Jewish Appeal-Federation of Jewish Philanthropies of New York, Inc. as the estate’s residuary beneficiary has obtained an order directing the decedent’s former housekeeper to turnover nearly one million dollars which the court found had been improperly converted by the woman. Although she had never earned more than $23,000, the housekeeper cashed hundreds of thousands of dollars in checks belonging to the decedent and her late husband and had managed to have her name added to several bank accounts as a joint tenant.

Testimony taken during the case indicated that the housekeeper had thoroughly neglected her wealthy charges. Although she claimed she had cashed the checks in order to apply to proceeds to her employers’ good and welfare, she was unable to provide any meaningful account as to just how the funds were spent.

Will the estate actually recover those funds? Unfortunately, obtaining a judgment in matters such as this is often far easier than recovering the money. Even though the SCPA provides excellent remedies to identify and isolate stolen assets and to reduce them to judgment, collection is often problematic since much of the stolen property is often dissipated by the time a judgment is obtained.

The best remedy here is probably vigilance. The children who are content to allow their wealthy, aging parents to be in the care of a housekeeper or health aide are best advised to maintain an active role in their loved one’s lives and to be frequent visitors. Besides the obvious emotional rewards that folks receive for taking care of the parents who once took care of them, being around and being observant makes it less likely that their relatives will be victimized and their estates looted.