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Withdrawing Cash from Estate Account – Is That Allowed?

Withdrawing cash from estate account

Can an executor withdraw cash from an estate account? No. Why not? Because the estate’s money does not belong to the executor – he is just managing it. What do we call it when a manager steals money he is managing? That’s right, it’s called embezzlement. Or more simply, stealing.

But how about if the executor is also a beneficiary? Don’t some of the money in the estate account also belong to him? For example, a lady left her inheritance to her four children, and one of the children is an executor. Can the executor-child withdraw cash from the estate and say that he is just withdrawing his own cash? The answer to that is absolutely not. Even though the executor is one of the beneficiaries of the estate account, at the end of the day the account is not his. The estate belongs to all the beneficiaries. So if an executor withdraws cash from the estate account, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he withdraws four thousand dollars in cash, he is not considered to be taking four thousand dollars of his own cash from the estate account. Rather, he is considered to be stealing a thousand dollars from each of his siblings. If he withdraws a penny, most of that penny belongs to the other beneficiaries.

What can happen if an executor neglects good advice and does withdraw cash from the estate account? Nothing good. The executor can be removed by the judge on the case. The court will force the executor to return the money. The court might order the executor to pay for his own attorneys’ fees as opposed to using estate funds to pay for his attorney’s fees. The judge may even order the executor to pay the beneficiaries’ attorneys’ fees. What is scarier is that the executor can even be criminally prosecuted for stealing. That’s right, a criminal prosecution even if the executor is one of the beneficiaries of the estate account and even if the amount he took is less than his stake in the estate account. The Surrogate’s Court judge can refer the case to the District Attorney’s office, which has the power to prosecute the case in criminal court.

Although we talk about an executor, the same rules apply to an administrator and a trustee, as well as a preliminary executor, administrator d.b.n., administrator c.t.a.d.b.n., administrator c.t.a., ancillary executor, ancillary administrator, and ancillary administrator c.t.a. [1]

Above, we’ve referred to the executor as a manager. The legal term for someone managing money, including an executor is “fiduciary.” [2] New York’s Estates, Powers and Trusts Law governs the conduct of an estate fiduciary, as well as a trustee and an agent under a Power of Attorney.

New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 11-1.6 states that “Every fiduciary shall keep property received as fiduciary separate from his individual property.  He shall not invest or deposit such property with any corporation or other person doing business under the banking law, or with any other person or institution, in his own name, but all transactions by him affecting such property shall be in his name as fiduciary.” [3]This includes taking cash from an estate account.

New York’s Penal Law (the Criminal Law) states that “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” [4]

The estate is the owner of the funds. By withdrawing cash from the estate account, the executor commits larceny.

New York Penal Law continues to say that “Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed … by conduct heretofore defined or known as common law larceny by trespassory taking, common-law larceny by trick, embezzlement, or obtaining property by false pretenses.” [5]

To sum up, executors should keep estate funds where they belong-in the estate account. Whenever they receive any funds relating to the estate in any way, those funds should be deposited into the estate account and not withdrawn without either signed consent from each and every beneficiary or an order of the court authorizing the executor to disburse the funds.

Whether you are a beneficiary who thinks that the executor is withdrawing cash from the estate account, or if you are an executor and you feel that you are being falsely accused of withdrawing cash from the estate account, you can speak with New York estate attorney Albert Goodwin, Esq. He can be reached at (212) 233-1233.

[1] NY EPTL § 11-1.1

[2] NY EPTL § 11-1.1

[3] NY EPTL § 11-1.6

[4] NY PEN § 155.05

[5] NY PEN § 155.05

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