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Theft from Estate Before Inventory. How Can I Get the Money Back?

theft from estate before inventory

Theft from estate before inventory occurs when someone steals property from the estate and the executor does not report it on the inventory. The thief likes everyone to think that the property is “outside of the estate,” which is not true. The good news is, once you discover the theft, you may be able to get the money or property back.

You can try to recover the stolen inheritance by requesting the alleged thief to restore or return it back to the estate and declare it on the inventory.

This may or may not work, but you can always just ask the person to return the money or property. It could be that their plan was to only take the property and not list it on the inventory if they could get away with it. Now that they are discovered, they may decide to cut their losses and not have to deal with a civil lawsuit or even criminal prosecution, and they might just return the money or property in question and list it on the inventory of the estate.

As a matter of fact, you can put this article on pause and try to do that right now.

If that worked, great, we’re done here.

If that did not work, you can keep on reading. Your next step would probably be to sue them in court. For that, you will likely need an attorney (hint: you can reach our firm at attorneyalbertgoodwin@gmail.com).

Once you get an attorney, they will ask you about the circumstances of the theft. Eventually, your attorney will put all of those circumstances in writing and will submit the writing to the court in a form of a petition or complaint.

In order to recover the stolen inheritance from the thief, you and your attorney would first have to answer a few basic questions, involving who, how, what and when.

Who?

When we hear complaints about theft from estate before inventory, it is usually stolen by someone who was close to the person who died:

  • family member – son, daughter, brother, sister, niece, nephew or cousin
  • friend, possibly someone who only pretended to be a friend
  • caretaker such as a home health aide or nurse
  • financial professional such as an attorney or accountant (this is not common)
  • a random stranger (this is even more uncommon)

Theft from estate before inventory can be committed by an executor, administrator, or a beneficiary, such as a sibling. It can also be committed by someone who is not a family member, or a person completely unrelated to the estate.

How?

Usually, the person attempting theft from estate before inventory would gain the trust of a vulnerable senior and use undue influence, lies, threats, manipulation, isolation, or forgery to obtain gifts or just steal from them.

As such, theft from estate before inventory can happen before or after death. It could be as simple as getting jewelry and other valuable personal property from the belongings of the decedent, or the administrator or executor over-charging the estate for fees or expenses related to administration, to something more complex, such as an adult child who is the primary caregiver of his parent using undue influence to gain control of real property that should have been divided among the parent’s children in equal shares.

What?

If you suspect theft from estate before inventory, immediately conduct your own due diligence and consult with an inheritance recovery attorney. Some places to start the investigation are:

  • Tax records to see whether title to property has changed via deed or sale, and whether any liens have been placed on real property
  • Bank, brokerage, and retirement account statements to see if there have been unusually large withdrawals
  • Changes in beneficiary designations on insurance policies, annuities, brokerage accounts, and retirement accounts, to see if there are recent replacements made
  • Bank accounts to see if another joint account holder has been added
  • Receipts and invoices for legal expenses, notary fees, or other estate planning services
  • Federal and state tax returns to determine if there had been gifts to others
  • Examination of personal property in drawers, closets, and safety deposit boxes to see if jewelry, coins, bonds, cash, and other collectibles are missing.

When?

Inheritance stolen before death. This usually occurs when a caregiver, child, friend, neighbor, new spouse, or advisor use their personal relationship with the person who died to obtain or take money from him, to the detriment of his loved ones.

Inheritance stolen after death. When it is the executor or administrator who is stealing from the estate, an interested person can petition the court to suspend and/or remove the executor or administrator. However, if you want to know how to recover stolen inheritance, you need to be aware of the fact that evidence of fraudulent activity is required. Together with an attorney, there may be a need to hire a forensic accountant to analyze the accounting documents to see if there is evidence of fraud.

Most inheritance theft cases occur before inventory. When someone dies, family members rummage through the belongings of the decedent to get anything of value, even before an executor is appointed to conduct inventory. By the time letters testamentary have been issued, most personal assets, such as expensive jewelry, artwork, antiques, cash hidden in the home, classic cars, stock certificates, and bonds or notes payable to bearer, have already been pillaged. For this reason, the executor may fail to include certain assets in the inventory. If you suspect that a family member has stolen from the decedent’s belongings prior to inventory and want to now how to recover stolen inheritance, it is important to conduct an extensive investigation to obtain evidence prior to filing a suit to recover the missing items. It is also important to use the services of an experienced estate recovery attorney such as our office. You can send me an email at attorneyalbertgoodwin@gmail.com.

Remedies: what you can do to recover stolen inheritance

Ultimately, when deciding whether to file a petition to remedy theft from estate before inventory, you must evaluate the strength of the evidence on hand, the value of the assets, and the time to be wasted and the legal costs spent in recovering it. This will provide you with an informed decision on whether recovering stolen inheritance is worth pursuing or not.

Recover stolen inheritance in civil court

Surcharge. Beneficiaries will ask the court to surcharge the executor who they are claiming took more than they are entitled to. If the executor is one of the beneficiaries, then the court can surcharge the executor’s share of the estate, giving some or all of the executor’s share to the other beneficiaries. Surcharge here means charging the person who stole the money with having to return the money. It’s a legal term, used a little differently than the common way we use the word surcharge.

Turnover. Beneficiaries can bring a proceeding for Discovery and Turnover. If the court grants the turnover, then it will force the executor to return property that was the subject of the theft.

Discharge of executor. If the person caught with theft from the estate is the executor or administrator, the judge of the Surrogate’s Court can discharge them from their position, taking away their power to manage the estate. The judge can discharge and remove the executor “by reason of his having wasted or improperly applied the assets of the estate.”[1] The court can appoint someone else as the executor instead, typically one of the beneficiaries who brought the proceeding to remove the misbehaving executor.

Attorneys’ fees. Executors use estate funds for their defense. If the court finds that the executor improperly took funds from the estate, the court can order the executor to reimburse the estate for their attorneys’ fees. In some rare cases, the court can even order the executor to pay the beneficiaries’ attorneys’ fees.

Waiver of commission. An executor is entitled to a commission for their services. The amount of the commission is about three percent of the value of the estate. As a penalty for theft from the estate, the court can take away the executor’s right to receive the commission.

Recover stolen inheritance through criminal restitution

It is not common for an executor of an estate to be criminally prosecuted, but it does happen. An executor or anyone else improperly taking money from an estate can be subject to criminal prosecution for theft from the estate before inventory, even if they are one of the beneficiaries. Taking more than you are entitled to by law can be interpreted as theft from the other beneficiaries of the estate. Everyone has their side of the story, and it could be that the beneficiaries’ allegations of theft are unfounded. But if the District Attorney’s office decides to bring charges, then the potential penalties can be significant.

The alleged thief’s side of the story. Executors or others who are accused of theft have their own side of the story. They say that they are paying for estate expenses, taking their legal fees, taking their share as a beneficiary, or comingling funds by mistake. They can also say that not including the money or property on the inventory was an oversight. Whether the executor is caught stealing and is now making an excuse or the executor did have a valid reason to transfer estate property to themselves is up to the court to decide, unless the executor makes a plea agreement with the District Attorney’s office.

The Penal Law. The estate is the owner of the property. When an executor is stealing from the estate before inventory, he commits larceny. 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.” [2] 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.” [3]

Sentencing guidelines. New York Penal Law 155 describes the sentencing guidelines for theft from the estate before inventory. The sentence depends on the amount that the executor steals. An executor convicted of larceny can incur a sentence of up to twenty-five years in prison.

Amount Stolen Type of Grand Larceny Section of Penal Code Felony Class Penalty
In excess of $1,000 but not more than $3,000 Fourth Degree PL 155.30(1) Class E Felony up to 4 years in prison
In excess of $3,000 but not greater than $50,000 Third Degree PL 155.35 Class D Felony up to 7 years in prison
In excess of $50,000 but is not more than $1 million Second Degree PL 155.40(1) Class C Felony up to 15 years in prison
In excess of $1 million First Degree PL 155.42 Class B Felony up to 25 years in prison

Restitution. The court can force the executor to return the property to the estate and pay restitution to the beneficiaries.

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. [4] who steal from the estate before inventory. Executors are not the only ones who can be accused of stealing from the estate. Anyone who has access to funds of the estate could potentially be a thief, such as the attorney, real esate broker, financial advisor, caretakers and others.

How an executor can avoid being charged with theft

Fill out the inventory correctly. Make sure you fill out the inventory forms correctly, without omitting any property, so that you would not be accused of theft. Have an estate attorney represent you in filling out the estate inventory, so that you are not accused of theft. Do not take more funds than you are entitled to. It can be tempting for an executor to take some extra cookies from the cookie jar. You have access to estate funds and the power to take some funds out. You don’t see anyone looking over your shoulder. But that sense of safety is false. Banks and courts have systems in place to detect fraud. Beneficiaries can get suspicious and hire an estate attorney or report the suspect to the police and hire an estate attorney to get the inheritance that they are entitled to.

Avoid self-dealing. The executor cannot transfer estate property to himself because the property belongs to someone else unless he pays the full price for it. As explained above, doing so can be interpreted as theft and can lead to an array of legal woes. A smart executor would want to avoid transferring estate assets to himself, even if paying fair and market value. If beneficiaries are getting more money than they would have, if not for the executor buying them out, the executor should explain it to the beneficiaries. For example, the executor can explain the savings on transaction costs, such as not having to pay a broker. There must be a feeling that the executor fulfilled his responsibilities to the beneficiaries.

Communicate with the beneficiaries. The executor should communicate with the beneficiaries, be transparent about the money he is taking from the estate, explain the reasoning behind it and try to get on the same page with the beneficiaries.

Do not commingle funds. The executor should place all estate funds into an estate account and not into his personal account. 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.” [4] Surrogate’s Court Procedure Act – SCP § 719 states that the court can take away a person’s power to manage the estate “where he mingles the funds of the estate with his own or deposits them with any person, association or corporation authorized to do business under the banking law in an account other than as fiduciary.”[5]

Do not use estate funds for personal expenses. The executor can only use estate funds to pay the legitimate expenses of the estate, taxes and legal fees.

Do not distribute any property without getting signed releases from beneficiaries. Once the executor collects the assets of the estate and pays out its debts, it’s time for the executor or administrator of a New York estate to disburse the funds to the beneficiaries. But before the executor does that, it is important to get a written release from the beneficiaries. The release states that the beneficiaries are satisfied with what they are getting and are never going to sue the executor. The best release comes with an informal accounting, which provides a summary of what property went into the estates, what the expenses were, and what is the share of inheritance for each beneficiary.

Having your New York estate lawyer get a release from beneficiaries is especially crucial when the executor is one of the beneficiaries. For example, if the executor is transferring a share of the decedent’s business, house, or other property to themselves, the executor should obtain a written release from the beneficiaries, or at least get them to approve it in writing, to avoid the possibility of the authorized transfer being misconstrued as self-dealing or commingling of funds.

How you can prevent theft from the estate before inventory

To prevent theft from an estate, you need to consult with an estate planning or probate attorney who can help and advise on how to proceed. Some actions you may consider taking are:

  • Get more involved with the parent
  • Be vigilant and be on the lookout for anyone who is trying to take undue advantage of their old age
  • Speak to your parent about issuing a financial power of attorney, so that you can help them manage their finances
  • Learn about guardianship options and decide if a guardianship makes sense in order to help you manage your parent’s affairs

Whether you are a beneficiary and you are claiming that there is theft from the estate before inventory or if you are an executor and you insist that the transfer of money or property was proper, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.


[1] SCP § 711Suspension, modification or revocation of letters or removal for disqualification or misconduct

[2] NY EPTL § 11-1.1

[3] NY EPTL § 11-1.1

[4] NY EPTL § 11-1.6

[5] SCP § 719 – In what cases letters may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process