Every beneficiary has a right to question the Trustee, Agent Under Power of Attorney or Executor. If a fiduciary has breached his duty, then the court can order the fiduciary to repair the damage. This decree, or Surcharge, is the result of the beneficiary filing a Surcharge Action. This Surcharge Action brings the fiduciary’s mismanagement, wrongful act or illegal act to the judge’s attention.
There are many different ways to bring a Surcharge Action to the Judge, including a Petition for Formal Accounting and a Petition for Removal, such as a Removal of a Trustee or Removal of an Executor. The specific details of your case will determine which route is most efficient.
The judge will Surcharge an Executor, Trustee or Agent only if he or she hears the proper evidence. You must provide the judge evidence in the form of documents and testimony. Gathering this evidence requires depositions, expert witnesses such as accountants, interrogatories, witness interviews, subpoenaed documents and evidence presented following the Rules of Evidence and subject to the Fiduciary’s objections. Our experienced Estate Litigation Attorneys will walk you through every step of this complicated journey. Convincing judges to Surcharge Fiduciaries is what we do.
Judges take Surcharge Actions seriously, and will only accept evidence if your team has followed proper procedures. Further, Fiduciaries are free to use Estate and Trust funds to defend themselves. If not countered by an experienced attorney, the fiduciary can use procedural steps to draw out the process and increase costs. An experienced Surcharge Attorney can assess the situation and help avoid pitfalls. In the end, the experience will save you money.
Any act that results in beneficiary loss can lead to a Surcharge Action. The following list gives typical examples.
You must bring your action for surcharge in the appropriate court using the proper procedure. Before the hearing, the Surcharge Attorney will make discovery, obtaining evidence to present to the judge. This discovery process may include depositions, interviews, and interrogatories of the existing Agent as well as financial advisors, beneficiaries, bankers or physicians. This evidence must be presented to the judge in an orderly fashion. This process is best handled by an Estates and Trusts focused attorney.
If you have any questions about Surcharge Actions or any other Estate Law topics, please contact us to schedule a free consultation.
For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex Estate Law and Surcharge Actions clearly and concisely. If you suspect that there is a breach of fiduciary duties, our experienced Estate Litigation Attorneys will make it easy for you to understand your options, including Surcharge Actions, and provide top notch representation so you can make the best decisions.
Peter Klenk is the founding member of Klenk Law, a seven attorney boutique estate planning law firm. We serve clients in Pennsylvania, New Jersey, New York, Minnesota and Florida. Peter Klenk received his Masters in Taxation LL.M. from NYU Law School and his J.D. from the University of Minnesota Law School. He served his country in the Navy JAGC during Desert Storm. Easy to talk to, feel free to call Peter for an appointment. We will make the process as easy as possible!
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