Once appointed as an executor or administrator of an estate, the fiduciary has the obligation to locate and account for all assets of the now deceased person so as to pay appropriate debts, pay taxes, safeguard the assets, and distribute them as required in the Will or law. See our article on Probate of Estates.

Many fiduciaries discover that locating and protecting the assets is difficult. Many decedents, especially during their last years when illness may interfere with clear thinking, do not keep good records. At times, those surrounding the decedent had their own agendas and sought to alienate assets. Often the elderly decedent was simply not capable of taking those everyday steps all of us do to safeguard assets and keep close watch on them.

It thus falls to the fiduciary to locate and, when necessary, retrieve all assets of the decedent and report same to the court and to the beneficiaries. Personal liability attaches to a fiduciary who fails in this duty.

This article shall discuss what remedies are available to a fiduciary who needs to locate and possibly retrieve assets of the Estate. The reader should also read our article on Wills and Trusts.


The Basic Tools Available to a Fiduciary in California:

According to Probate Code § 9820(a) (hereafter “Prob.C”), a personal representative may, “commence and maintain actions and proceedings for the benefit of the estate.” This allows the administrator or executor to commence legal proceedings to both discover and retrieve assets that rightfully belong to the estate. Indeed, it is required for the fiduciary to do that if the fiduciary has reasonable grounds to believe assets are missing.

The fiduciary has a number of remedies available:


1. Citation to Answer Interrogatories or Appear for Witness Examination:

If the personal representative is suspicious that a third party is withholding information regarding the estate, he or she can petition the Court to issue a citation to the person to answer interrogatories and/or appear before the court for a witness examination. Note that this pertains to a witness, not necessarily the person actually holding the asset.

Prob. C. § 8870 states that “on petition by the personal representative…the court may order that a citation be issued to a person to answer interrogatories, or to appear before the court and be examined under oath or both, concerning any of the following allegations: (1) The person has wrongfully taken, concealed, or disposed of property in the estate of the decedent. (2) The person has knowledge or possession of …..: (A) A deed, conveyance, bond, contract, or other writing that contains evidence of or tends to disclose the right, title, interest, or claim of the decedent to property..”

If the citation requires the person to answer interrogatories, Prob. C. § 8871 states that the “interrogatories and answers shall be in writing. The answers shall be signed under penalty of perjury by the person cited. The interrogatories and answers shall be filed with the court.”

If the citation requires the person to appear before the court and be examined, Prob. C. § 8872 (a) states that “witnesses may be produced and examined by either side.”

Note there is a risk to using the citation process. If the personal representative’s petition’s allegations are found to be true, Prob. C. § 8872(b) states that “the court may order the person to disclose the person’s knowledge of the facts to the personal representative.” On the other hand, if the personal representative’s petition’s allegations are found to be false, Prob. C. § 8873(c) states that “the person’s necessary expenses, including a reasonable attorney’s fee, shall be charged against the petitioner or allowed out of the estate, in the discretion of the court.”

Prob. C. § 8870(c) states that “disobedience of a citation issued pursuant to this section may be punished as contempt of the court issuing the citation.” Contempt of court exposes the person to criminal and civil sanctions at the court’s discretion, including incarceration in extreme cases.


2. Ordinary Civil Procedures

Also, if needed, and without court approval, the fiduciary can simply commence litigation on behalf of the estate against the person believed to be holding the asset and use the normal discovery rules used in civil actions to examine both him or her and all salient witnesses. Normal discovery process is available in such actions so long that the civil process is being used does not contradict the Probate Code.

Prob. C. § 1000 states that “Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings…, apply to, and constitute the rules of practice in proceedings under this code.”

The estate, for most purposes, is treated as any other legal entity before the court and the fiduciary bringing the action is treated the same as an officer of a corporation bringing a legal action on behalf of a corporation. The reader should review our article on American Litigation to determine the steps and tools available in that case.

It is not uncommon for the citation process to lead to later commencement of a civil action against the party being cited or a third party if the court is unable to determine actual ownership of an asset or the person cited is not the person holding the asset. The court can either cite and order the person or recommend to the fiduciary that he or she bring civil action so that full discovery is available to determine ownership. There are other remedies available such as a Petition to Determine Heirship and/or seeking injunctive relief.


Citation or Litigation-When Appropriate?

While the citation process is relatively fast and inexpensive, it is quite limited in the extent of the discovery allowed and bears the risk of the court awarding attorneys fees against the fiduciary if the evidence does not develop appropriately. It is an excellent way for the fiduciary to determine the location of assets especially if there is no dispute concerning ownership, but if that ownership is likely to be disputed or truly extensive discovery required, the more formal process of full civil litigation is normally required.

One attorney put it well: “If you just need to get back some asset all know should be returned or if you have no idea where something disappeared to, then citation makes sense. If you are going to have a real fight as to who owns what or know where the asset is, plan on filing suit."