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Can the Executor of a Will Take Everything – What Happens if they Do

can the executor of a will take everything

Can the executor of a will take everything? In most cases, no. Everything does not belong to the executor – he is just managing the estate. By taking everything, the executor would be taking estate property away from the beneficiaries of the estate. What do we call it when a manager steals money he is managing? That’s right, it’s called embezzlement.

Everything in the estate belongs to all the beneficiaries. If an executor takes everything for his own needs or transfers everything to himself, he is considered by the law to be taking everyone’s money, not just his own.

What can happen if an executor neglects good advice and takes everything? Nothing good. They can be removed by the judge on the case. The court will force them to return everything to the estate or pay restitution to the beneficiaries of the estate. The court might order them 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 them to pay the beneficiaries’ attorneys’ fees.

What is scarier is that the executor can even be criminally prosecuted for stealing, and potentially lose everything. That’s right, a criminal prosecution even if the executor is one of the beneficiaries of the estate that contains everything. 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.

The executor of a will cannot take everything because the money belongs to someone else. Unless he pays full price for it. As explained above, doing so is stealing and can lead to an array of legal woes.

Above, we’ve referred to the executor of a will 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.

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]

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 everything in it. If an executor of a will takes everything, he 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]

Having your New York estate lawyer get a release form beneficiaries is especially crucial when the transaction in question involves the executor personally, such as when the transaction is between the estate and the executor or the executor derives some sort of benefit from the transaction. For example, if the executor is taking something for himself, the executor should obtain a written release from the beneficiaries, or at least get them to approve it in writing, in order to avoid the possibility of being sued.

The most crucial release that an executor can get from the beneficiaries is at the end of the estate. Once everything is collected or sold and the debts are paid out, and it’s time for the executor or administrator of a New York estate to distribute everything that’s left to the beneficiaries. But before the executor does that, it is important to get the release from the beneficiaries that states that they 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 everything that went into the estates, what the expenses were, and what is the share of inheritance for each beneficiary.

To sum up, the executor of a will cannot take everything. The executor should place all estate funds into an estate account. The executor can only use estate funds to pay the legitimate expenses of the estate, taxes and legal fees.

Whether you are a beneficiary who thinks that the executor of a will is taking everything, or if you are an executor and you feel that you are being falsely accused of doing that, you can call the Law Offices of Albert Goodwin. We 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