Brother Took and is Hiding Father’s Money in New York City

If your brother took and is hiding your father’s money, it depends on whether the taking or hiding was done when your father was still alive and whether your father consented. If your father was still alive when your brother took the money and your father allowed it, it will be considered a gift of your father to your brother. If your father was still alive when your brother took the money, but the taking was done without the consent of or in fraud of the father, then you may have a chance of recovering the money through the court system. If the taking was done after the death of the father, then you may recover it as the estate’s personal representative.

If The Brother Took the Money During Your Father’s Life

If your father was alive when your brother took the money, there are two scenarios: (a) your father was not aware that the money was taken; or (b) your father was aware that the money was taken.

In the first scenario, if your father was not aware that the money was taken, then there is a possibility of theft or fraud on the part of your brother. In the second scenario, if your father was aware that the money was taken, courts may presume that the father intended your brother to have that money.

It all depends on whether your father, during his lifetime, attempted to take back that money. If your father made attempts while he was alive to take the money and died without taking it back, your father’s estate, through its executor or administrator, can continue the fight to take or recover that money from your brother.

Your father’s estate will have a cause of action against your brother if the money was taken during your father’s lifetime, if your brother took the money using unlawful means without the consent of your father.

If you father is suffering some sort of incapacity, he might not be aware that your brother is taking money from him. It is worse when your brother is in possession of a power of attorney that allows him unbridled access to your father’s accounts.

When this happens, you will need to file a petition to revoke the power of attorney and for the appointment of a guardian for the person and property of your father. This will allow the court to revoke the power of attorney and allow the guardian to have manage your father’s property while incapacitated under the supervision of the court.

If The Brother Took the Money After Your Father’s Death

When your brother’s taking or hiding of your father’s money was done after your father died, then your father’s estate can recover this amount. In New York, an executor or administrator of an estate may file a petition to discover or recover property of the estate that is in the hands of a third person. These are two distinct and independent petitions which can be joined, depending on the evidence on hand.

The Discovery and Turnover Petition

To be able to discover and recover property of your father that is in the possession of a third person (such as your brother), your first step is to get yourself appointed as the executor or administrator by the court. To do this, you must file a petition for probate or administration, requesting for the issuance of letters testamentary to yourself. It is important to get an experienced estates attorney to file this petition because an experienced attorney will commit less mistakes in the filing of your petition, which minimizes any risk of delay. This is especially important because every day counts when you are trying to recover property that is in the possession of another person, since this property could easily be squandered away, while you are waiting for the court order appointing you as executor or administrator.

As executor or administrator, you will be able to access the bank account statements of your father, even without court order, for as long as you know which banks your father has accounts with. Getting the account statements from the bank will allow you to evaluate and analyze how much money was left in your father’s account at the time of his death. For sure, this amount belongs to your father’s estate.

If the money from the bank accounts, however, were taken by your brother before your father died, you must prove that the taking was done unlawfully and without your father’s consent.

Discovery Petition

You can do this through the filing of a discovery petition, which allows you to examine any person regarding the whereabouts of property belonging to the deceased person. Under the discovery petition, you can get an order directing your brother to appear before court to be examined under oath regarding the whereabouts of your father’s money. Depending on the outcome of this examination, you can file a petition for turnover, directing the person with possession of the money to turn it over to the estate.

Turnover Petition

The turnover petition’s objective is to direct a person to turnover the deceased’s property to the executor or administrator. A turnover petition is similar to a complaint. It will have causes of action; for example, the taking was done fraud, breach of fiduciary duty, or undue influence. The prescriptive period would then depend on the manner on which your brother took your father’s property and your cause of action.

Discovery and turnover petitions are best left in the hands of experienced estate litigation attorney. This will increase the likelihood of success of your petition. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].