If a New York estate does not have enough money to pay the creditors, the creditors do not have the right to go after the beneficiaries personally. However, if the estate has real property, creditors may force the sale. And if the estate has no money because the money was given to beneficiaries instead of creditors, the creditors can go after the personal representative personally and may be able to recover some of the money from the beneficiaries.
A New York executor has to be careful to make sure that all creditors are paid, and get waivers from all the creditors, before distributing property to the beneficiaries. Otherwise, the executor risks being personally liable to the creditors. In some cases, where a creditor is a government agency, such as can be the case in Special Needs Trusts, where the Department of Social Services is the creditor, the case may or may not be referred by the government agency to the District Attorney’s office.
For a creditor, recovering money from the beneficiaries may prove to be difficult because the money may have already be spent by the time creditor gets to it. For that reason, creditors would try to freeze the funds before going into the substance of the lawsuit, by going for a temporary restraining order, which a probate judge may or may not grant.
If you are involved in a lack of funds situation and need a New York City estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.