‘Can someone take my inheritance’ is a complex question. The answer would depend on who, when and how the taking of the inheritance was carried out. Sometimes, the taking of your inheritance could have been legally made. For this reason, an inheritance lawyer can help your understand the unique circumstances of your cases to see whether you have a legal cause of action against another because of the taking of your inheritance.
Who took your inheritance?
The very first question a lawyer would ask is, ‘who took your inheritance?’
If an executor or administrator took your inheritance, you have a different set of remedies, such as filing a petition for the removal of the executor, requesting that the executor or administrator be surcharged for the money that was taken, or in some cases, filing an application for a temporary restraining order to prevent the executor from committing a certain act that could result to the reduction of your inheritance, such as the sale of real property below market value for no reason.
If it was the decedent who took your inheritance by omitting you from the will, this is generally an acceptable form of taking your inheritance. You can, however, contest the will by claiming that the decedent was under undue influence or did not have testamentary capacity when he executed the will, taking away your inheritance.
If it was a third person who took your inheritance, you can file discovery and turnover proceedings or other possible remedies depending on the unique circumstances of the case.
How was the taking of your inheritance carried out?
Abuse of power of attorney
When someone is taking your inheritance while your loved one is still alive, this usually takes the form of a third person with a power of attorney stealing from your loved one who might not have the mental capacity anymore to provide for his or her own needs and does not understand the consequence of having the inability to provide for such needs.
For example, your parent is suffering from dementia or Alzheimer’s but prior to having this disease, executed a durable power of attorney in favor of a third person, or even your sibling. This third person or sibling begins to financial drain the bank accounts of your parent without your parent knowing or understanding because of the dementia or Alzheimer’s. Usually, this third person will begin isolating your parent and restricting your access to the parent by refusing visits. In this case, you can file a petition for guardianship to have the power of attorney revoked and a guardian for the person and/or property of your parent appointed. Once a guardian is appointed, the court can oversee and monitor the expenses of your parent to ensure that your parent’s wealth is preserved and in effect, your inheritance is secured.
Undue influence in execution of deeds
When someone is taking your inheritance by asking your parent to execute deeds transferring property to them, your remedies are also different.
If your parent is still alive, a petition for guardianship is your best remedy. Thereafter, the guardian can file complaints to recover the property or to reform the deed. If your parent is already dead, the appointed executor or administrator can file discovery and turnover proceedings against such third person, claiming a variety of grounds, such as undue influence and lack of mental capacity on the part of the grantor.
Under undue influence, if the relationship between the decedent and influencer partakes of a confidential relationship, there is a reverse burden and the influencer has the burden of explaining to the court the rationale of the decedent’s gift to him or her.
Designation in bank and investment accounts
A parent can also designate a child as a joint tenant in a bank account to help in the management of the parent’s finances. When the parent dies, the child assumes ownership over the entire bank account as a joint tenant with rights of survivorship. When this child has siblings, family feuds can ensue on whether the child really owns the bank account or whether the parent’s estate owns it. In this case, your remedy is to question the child’s ownership of the bank account by claiming that it is a joint bank account for convenience. Usually, signature cards or investment applications will show whether words of survivorship were included in the formation of the account. Other nuances may appear in the legal analysis, depending on the unique circumstances of your case. An estate litigation lawyer can advise you on this matter during consultation.
Taking of the inheritance by court order
When it is the court who takes away part of your inheritance, possibly by reason of returning to the spouse the spousal elective share or abatement when the assets of the decedent are not enough to pay for the debts, there’s not much you can do but to accept the court order unless you want to appeal or question the order, which can be tough and expensive to overturn. However, before the order is given, your lawyer can find defenses depending on the unique circumstances of your case.
Executor or administrator misconduct
The executor or administrator can also take your inheritance by overcharging unnecessary administrative expenses or selling real property below market value to a family member or a friend. When you are vigilant and in constant communication with the executor or administrator, you can file an application for a temporary restraining order or preliminary injunction if you would like to prevent a particular act from being committed, such as the sale of real property of the estate. In preventing the sale of real property below market value, you must have an independent appraisal of the property showing the real market value.
There are times when you learn about the act a little bit too late. In this case, you have to request an informal accounting from your executor or administrator, and if you do not agree to this accounting, you can compel the filing of a formal account with the court. Once this formal account is filed, you can make objections to the accounting and request that the court hold the executor or administrator personally liable for these unnecessary administrative charges or the difference between the market value or the property and the sale price. In all cases, you must have evidence to support your allegations
Above is just a short list of how your inheritance can be taken away. There are still many creative ways of taking away someone’s inheritance. As previously mentioned, your legal remedy will depend on the unique circumstances of your case. An estate litigation lawyer will be able to advise you on your remedies. 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 email@example.com.