A SCPA Article 21 proceeding may be used to recover the assets of the decedent when they are wrongfully transferred during the decedent’s lifetime. The issue becomes difficult when you ask when the proceeding should be commenced.
The answer to this question depends on the nature of the underlying wrongdoing. Generally, the applicable statute of limitations is three years, accruing on the date when the property was taken. This is based on equating the proceeding to actions in replevin or conversion.
The applicable period, however, may be much longer. Where actual fraud is alleged, for example, the statute of limitations is generally the later of six years from the fraud or two years from its discovery. Similarly, where a constructive trust is sought or the claim involves allegations of the abuse of a power of attorney, the limitations period is generally six years.
The time period to sue may also be extended even further based on when the claim accrues. For example, a claim involving the abuse of a power of attorney may not begin to run until the fiduciary relationship has been terminated.