When your sister is stealing from an estate, it’s usually because the temptation is simply too hard to resist. It comes down to greed. People can come up with all sorts of elaborate excuses for the theft, and then use a number of schemes to cover up what they did. When siblings have a strained relationship or when they were geographically separated for a long time, they will sometimes deny the other siblings their share of the inheritance.

If your sister is stealing from an estate, there’s a lot you can do. You have legal options available and an estate lawyer will likely be able to get the money and property back for you.

You can try to recover stolen inheritance by requesting your sister to restore or return it back to the estate.

This may or may not work, but you can always just ask your sister to return the money or property. It could be that her plan was to only take the property if she could get away with it. Now that he is discovered, she may decide to cut her losses and not have to deal with a civil lawsuit or even criminal prosecution, and she might just return the money or property in question.

As a matter of fact, you can put this article on pause and try to get in touch with her 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 your sister in court. If you need an attorney to recover stolen inheritance, you can send us an email to 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.

What are the red flags that your sister is stealing from an estate?

Do you see a sudden increase in your sister’s spending? Is your sister buying nicer clothing? Bought or leased a new car? Bough a new house or is renovating their house? Sending their kids to an expensive school? While those things don’t prove that your sister is stealing from the estate, they could be red flags.

What can we do about the theft?

The simple answer is, we try to get the money back. Where the sister refuses to return the money, we sue her and execute her property in favor of the estate. There are a number of remedies available to force your sister to return the money.

Accounting. The standard process in the Surrogate’s Court is to compel your sister to provide a formal accounting. Once your sister provides the accounting, the beneficiary has a chance to object to the accounting. If the court finds that your sister stole from the estate, the court will surcharge your sister. If your sister is also a beneficiary, the court will deduct the money from your sister’s share. If your sister is not a beneficiary, the court can surcharge herwith the money she stole.

Turnover Proceeding. If your sister stole property as opposed to money, the beneficiary’s estate lawyer can bring a proceeding for turnover of the property.

Bonding. Sometimes there is a bond on a sister who is an executor. A bond is a kind of insurance against executor theft. If you are lucky enough that there is a bond, or your estate lawyer was experienced enough to apply for a bond, then you can make a claim against the bonding company if your sister is found to steal money or property but the money is impossible to recover from your sister.

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

What are the potential penalties for your sister?

What can happen if your sister is an executor and neglects good advice and steals from the estate? Nothing good. Your sister can be removed from being executor can be by the judge on the case. The court will force your sister to return the money. The court might order your sister to pay for her own attorneys’ fees as opposed to using estate funds to pay for her attorney’s fees. The judge may even order your sister to pay the wronged sister’s attorneys’ fees. What is scarier is that if your sister is an executor, they could be criminally prosecuted for stealing. That’s right, a criminal prosecution even if the executor is one of the beneficiaries of the estate and even if the amount she took is less than her 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 a sister who is 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 her 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 her own name, but all transactions by him affecting such property shall be in her 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 stealing from the estate account, a sister who is an 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, sisters who are 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 and not withdrawn without either signed consent from each and every beneficiary or an order of the court authorizing your sister to disburse the funds.

Whether you are a beneficiary who thinks that your sister is stealing from the estate account, or if you are an executor and you feel that your sister is falsely accusing you of stealing from the estate account, you can speak with New York estate attorney Albert Goodwin, Esq. He can be reached at (212) 233-1233 or (718) 509-9774.

[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

When the caretaker abuses a power of attorney, that can mean serious financial consequences for your loved one’s well being and diminishes your future inheritance.

By creating a power of attorney and giving the caretaker such important powers, your loved one exposed themselves to a potential for fraud, self-interest and embezzlement by the caretaker. A situation where large sums of money and substantial assets are involved and readily accessible can create a temptation for the caretaker.

If you are having issues with the caretaker who is abusing power of attorney or being unjustly accused of such, we at the Law Offices of Albert Goodwin are here for you. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

A caretaker can abuse your loved one’s powers of attorney, when the elderly person are physically disabled or mentally incapacitated. A financially abusive caretaker could leave your loved one’s estate and their heirs without any assets or inheritance.

A power of attorney gives the caretaker the authority to make legal and financial decisions for your loved ones regarding such matters as bank accounts, the purchase and sale of real estate and the management, stock and bond transactions, retirement plans, investments and disposition of other assets.

(At least the power attorney doesn’t work for things such as voting, revoking or amending a will, divorce or marriage matters or fulfilling personal services under a contract matter.)

A power of attorney is in effect until your loved one dies unless there is an expiration limit. Or, your loved one can revoke the power of attorney at any time by giving written notice to the caretaker (hopefully with a copy of the notice to you). Abuses of powers of attorney by a the caretaker can be financially and emotionally devastating to the loved ones, who may feel surprised and betrayed by this misconduct.

Since there is such a huge potential for disagreements and fraudulent acts to arise, creating a power of attorney can lead to potential future lawsuits if loved ones chooses the a caretaker as the power of attorney.

How can the caretaker abuse a power of attorney

There are plenty of ways in which the caretaker can abuse a power of attorney. Here are some examples:

• Opening joint bank accounts and naming the caretaker as a beneficiary or co-owner with right of survivorship
• Purchasing life insurance policies with your loved one as insured and naming the caretaker as a beneficiary or changing existing life insurance account beneficiaries
• Purchasing real estate with your loved one’s money and transferring title of real estate for the caretaker’s benefit
• Unauthorized gifting to the caretaker
• Outright theft by the caretaker of the loved one’s property
• Unauthorized use by the caretaker of credit cards or establishing credit under the loved one’s name

What can I do if I suspect my loved one’s caretaker is abusing a power of attorney?

Ask the caretaker to return the money or property

This may or may not work, but you can always just ask the caretaker to return the money or property. It could be that their plan was to only abuse the power of attorney 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.

Ask your loved one to revoke the power of attorney

The simples thing to do would be to explain to your loved one that they are possibly being defrauded by the caretaker, and ask them to revoke the power of attorney in writing (hopefully with a copy to you). You may or may not choose to follow up and make sure that the caretaker is no longer in any power of authority over any of your loved one’s assets.

Bring a lawsuit against the caretaker

Your loved one can contest the power of attorney in court by suing the caretaker on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to your loved one. These matters are complex, time-consuming and most people require the assistance of an experienced litigation attorney to help resolve matters for them in court.

Although your loved one can revoke the power of attorney that the caretaker is abusing and can sue the caretaker to get the money back, they are often too old and frail and don’t have the will power or sometimes even the mental capacity to bring a lawsuit. They also feel bad for the caretaker, thinking that they don’t want them to get into any kind of trouble with the law.

Place a guardianship over your loved one

One option may be to obtain guardianship over your loved one. Once you are a guardian, you can bring a lawsuit against the caretaker abusing the power of attorney on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to your loved one and ultimately to benefit the estate and beneficiaries.

There are some downsides to the guardianship proceeding, the most common downside being that your loved one can resent you for bringing a proceeding which compromises their independence. These matters are complex, time-consuming and most people require the assistance of an experienced New York guardianship attorney to help resolve matters for them in court.

Is abusing a power of attorney criminal, can the caretaker go to jail for it?

A caretaker abusing a power of attorney can leave your loved one’s estate and their heirs without any assets or inheritance. The caretaker’s power of attorney abuse described above typically involves one or more of the following potentially criminal conduct:

• Embezzlement
• Theft
• Identity theft
• Fraud
• Forgery

Having said that, it is unlikely that the caretaker will face jail time, as your loved one is unlikely to press charges against their relative. Besides, the police tends to view power of attorney abuse as a civil matter.

Can I report the abuse to adult protective services?

Reporting power of attorney abuse to the adult protective services is likely to not yield a result, as those government agencies typically view this issue as a civil matter. Your best opportunity to resolve the situation is to retainer the services of an attorney who has experience in these kind of matters. However, if other types of abuse are present, then you do want to report the abuse to adult protective services.

How can I prove that the caretaker is abusing a power of attorney

You can prove that the caretaker is abusing a power of attorney by looking at your loved one’s financial statements and property records. If the caretaker is indeed abusing the power of attorney, then you will see transfers of money or property to the caretaker or unexplained cash withdrawals. You can ask your loved one to show those documents to you or to give you access to those documents. If that is not possible, then your attorney would know how to get those documents.

A power of attorney is in effect until

• The person who made it dies
• It expires (if it has an expiration date)
• It’s revoked by your loved one, who can revoke it by giving written notice to the caretaker
• It is successfully contested and is revoked by the court

How much does it cost to hire a lawyer for this type of matter

Attorneys generally charge by the hour. In our firm, we charge $400 per hour and require a retainer deposit of $4,000 to work on a case. No one likes to spend money on lawyers, but if the alternative is your parent continuing to suffer power of attorney abuse and your future inheritance to keep getting diminished, it seems like an easy choice to make.

If you are having issues with the caretaker who is abusing power of attorney or being unjustly accused of such, we at the Law Offices of Albert Goodwin are here for you. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

When your cousin abuses a power of attorney, that can mean serious financial consequences for your loved one’s well being and diminishes your future inheritance.

Abuses of powers of attorney can be financially and emotionally devastating to your loved one’s estate and their heirs and beneficiaries. If you are suspecting that your cousin is abusing a power of attorney, your goals are to

• have your loved one revoke the power of attorney
• have your cousin return the money and property
• contest the power of attorney
• have the court revoke, set aside or cancel out the power of attorney
• find other ways of assisting your loved one

By creating a power of attorney and giving your cousin such important powers, your loved one exposed themselves to a potential for fraud, self-interest and embezzlement by your cousin. A situation where large sums of money and substantial assets are involved and readily accessible can create a temptation for your cousin.

Relatives sometimes abuse their loved ones’ powers of attorney, when the elderly loved one needs elder care and are physically disabled or mentally incapacitated. A financially abusive cousin could leave a your loved one’s estate and their heirs without any assets or inheritance.

Since there is such a huge potential for disagreements and fraudulent acts to arise, creating a power of attorney can lead to potential future lawsuits if loved ones choose the wrong cousin as the power of attorney. A person should carefully consider which one of their relatives (if any) should act as their power of attorney. If someone does decide to name a relative as a power of attorney, they should pick the relative who possess traits of trust, honor and integrity and who has earned the trust of all the other relatives.

What is considered power of attorney abuse

There are plenty of ways in which a person can abuse a power of attorney. Here are some examples:

• Opening joint bank accounts and naming the cousin as a beneficiary
• Purchasing life insurance policies and naming the cousin as a beneficiary
• changing existing life insurance account beneficiaries
• Purchasing real estate with your loved one’s money and transferring title of real estate for the benefit of the cousin
• Unauthorized gifting to self
• Unauthorized gifting to individuals and charities
• Theft of property
• Self-dealing
• Unauthorized use of credit cards
• Establishing credit under your loved one’s name

What can I do if I suspect my cousin is abusing a power of attorney?

Ask your cousin to return the money or property

This may or may not work, but you can always just ask your cousin to return the money or property. It could be that their plan was to only abuse the power of attorney 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.

Ask your loved one to revoke the power of attorney

The simples thing to do would be to explain to your loved one that they are possibly being defrauded by your cousin, and ask them to revoke the power of attorney in writing (hopefully with a copy to you). You may or may not choose to follow up and make sure that your cousin is no longer in any power of authority over any of your loved one’s assets.

Bring a lawsuit against your cousin

Your loved one can contest the power of attorney in court by suing your cousin on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to your loved one. These matters are complex, time-consuming and most people require the assistance of an experienced litigation attorney to help resolve matters for them in court.

Although your loved one can revoke the power of attorney that your cousin is abusing and can sue the cousin to get the money back, they are often too old and frail and don’t have the will power or sometimes even the mental capacity to bring a lawsuit. They also feel bad for your cousin, thinking that they don’t want them to get into any kind of trouble with the law.

Place a guardianship over your loved one

One option may be to obtain guardianship over your loved one. Once you are a guardian, you can bring a lawsuit against the cousin abusing the power of attorney on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to your loved one and ultimately to benefit the estate and beneficiaries.

There are some downsides to the guardianship proceeding, the most common downside being that your loved one can resent you for bringing a proceeding which compromises their independence. These matters are complex, time-consuming and most people require the assistance of an experienced New York guardianship attorney to help resolve matters for them in court.

Is abusing a power of attorney criminal, can my cousin go to jail for it?

A cousin abusing a power of attorney can leave your loved one’s estate and their heirs without any assets or inheritance. Your cousin’s power of attorney abuse described above typically involves one or more of the following potentially criminal conduct:

• Embezzlement
• Theft
• Identity theft
• Fraud
• Forgery

Having said that, it is unlikely that your cousin will face jail time, as your loved one is unlikely to press charges against their relative. Besides, the police tends to view power of attorney abuse as a civil matter.

Can I report the abuse to adult protective services?

Reporting power of attorney abuse to the adult protective services is likely to not yield a result, as those government agencies typically view this issue as a civil matter. Your best opportunity to resolve the situation is to retainer the services of an attorney who has experience in these kind of matters. However, if other types of abuse are present, then you do want to report the abuse to adult protective services.

How can I prove that my cousin is abusing a power of attorney

You can prove that your cousin is abusing a power of attorney by looking at your loved one’s financial statements and property records. If your cousin is indeed abusing the power of attorney, then you will see transfers of money or property to your cousin or unexplained cash withdrawals. You can ask your loved one to show those documents to you or to give you access to those documents. If that is not possible, then your attorney would know how to get those documents.

A power of attorney has a lot of potential for your cousin to abuse it

If your loved one gave your cousin a power of attorney, it may make sense for you to look closely into the arrangement. Perhaps ask for some financial records just to be on the safe side. You can never be too careful when it comes to power of attorney, due to the potential for abuse. A power of attorney gives your cousin the authority to make legal and financial decisions for your loved one regarding such matters as

• bank accounts, including withdrawals and transfers
• the purchase and sale of real estate
• management of assets
• stock and bond transactions
• retirement plans
• investments
• buying and selling assets

By creating a power of attorney and giving someone such important powers, there is a potential for fraud, self-interest and embezzlement by a your cousin, especially where large sums of money and substantial assets are involved and readily accessible. A situation where large sums of money and substantial assets are involved and readily accessible can create a temptation that would be hard for your cousin to resist.

A power of attorney is in effect until

• The person who made it dies
• It expires (if it has an expiration date)
• It’s revoked by your loved one, who can revoke it by giving written notice to your cousin
• It is successfully contested and is revoked by the court

How much does it cost to hire a lawyer for this type of matter

Attorneys generally charge by the hour. In our firm, we charge $400 per hour and require a retainer deposit of $4,000 to work on a case. No one likes to spend money on lawyers, but if the alternative is your loved one continuing to suffer power of attorney abuse and your future inheritance to keep getting diminished, it seems like an easy choice to make.

We at the Law Offices of Albert Goodwin are here for you. We have offices in Brooklyn, NY, Manhattan and Queens. You can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

When your sister abuses a power of attorney, that can mean serious financial consequences for your parent’s well being and diminishes your future inheritance.

Abuses of powers of attorney can be financially and emotionally devastating to your parent’s estate and their heirs and beneficiaries. If you are suspecting that your sister is abusing a power of attorney, your goals are to

• have your parent revoke the power of attorney
• have your sister return the money and property
• contest the power of attorney
• have the court revoke, set aside or cancel out the power of attorney
• find other ways of assisting your parent

By creating a power of attorney and giving your sister such important powers, your parent exposed themselves to a potential for fraud, self-interest and embezzlement by your sister. A situation where large sums of money and substantial assets are involved and readily accessible can create a temptation for your sister.

Children sometimes abuse their parents’ powers of attorney, when the elderly parent needs elder care and are physically disabled or mentally incapacitated. A financially abusive sister could leave a your parent’s estate and their heirs without any assets or inheritance.

Since there is such a huge potential for disagreements and fraudulent acts to arise, creating a power of attorney can lead to potential future lawsuits if parents choose the wrong sibling as the power of attorney. A parent should carefully consider which one of their children (if any) should act as their power of attorney. If a parent does decide to name a child as a power of attorney, they should pick the child who possess traits of trust, honor and integrity and who has earned the trust of their sisters.

What is considered power of attorney abuse

There are plenty of ways in which a person can abuse a power of attorney. Here are some examples:

• Opening joint bank accounts and naming the sister as a beneficiary
• Purchasing life insurance policies and naming the sister as a beneficiary
• changing existing life insurance account beneficiaries
• Purchasing real estate with your parent’s money and transferring title of real estate for the benefit of the sister
• Unauthorized gifting to self
• Unauthorized gifting to individuals and charities
• Theft of property
• Self-dealing
• Unauthorized use of credit cards
• Establishing credit under your parent’s name

What can I do if I suspect my sister is abusing a power of attorney?

Ask your sister to return the money or property

This may or may not work, but you can always just ask your sister to return the money or property. It could be that their plan was to only abuse the power of attorney 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.

Ask your parent to revoke the power of attorney

The simples thing to do would be to explain to your parent that they are possibly being defrauded by your sister, and ask them to revoke the power of attorney in writing (hopefully with a copy to you). You may or may not choose to follow up and make sure that your sister is no longer in any power of authority over any of your parent’s assets.

Bring a lawsuit against your sister

Your parent can contest the power of attorney in court by suing your sister on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to your parent. These matters are complex, time-consuming and most people require the assistance of an experienced litigation attorney to help resolve matters for them in court.

Although your parent can revoke the power of attorney that your sister is abusing and can sue the sister to get the money back, they are often too old and frail and don’t have the will power or sometimes even the mental capacity to bring a lawsuit. They also feel bad for your sister, thinking that they don’t want them to get into any kind of trouble with the law.

Place a guardianship over your parent

One option may be to obtain guardianship over your loved one. Once you are a guardian, you can bring a lawsuit against the sister abusing the power of attorney on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to your parent and ultimately to benefit the estate and beneficiaries.

There are some downsides to the guardianship proceeding, the most common downside being that your parent can resent you for bringing a proceeding which compromises their independence. These matters are complex, time-consuming and most people require the assistance of an experienced New York guardianship attorney to help resolve matters for them in court.

Is abusing a power of attorney criminal, can my sister go to jail for it?

A sister abusing a power of attorney can leave your parent’s estate and their heirs without any assets or inheritance. Your sister’s power of attorney abuse described above typically involves one or more of the following potentially criminal conduct:

• Embezzlement
• Theft
• Identity theft
• Fraud
• Forgery

Having said that, it is unlikely that your sister will face jail time, as your parent is unlikely to press charges against their child. Besides, the police tends to view power of attorney abuse as a civil matter.

Can I report the abuse to adult protective services?

Reporting power of attorney abuse to the adult protective services is likely to not yield a result, as those government agencies typically view this issue as a civil matter. Your best opportunity to resolve the situation is to retainer the services of an attorney who has experience in these kind of matters. However, if other types of abuse are present, then you do want to report the abuse to adult protective services.

How can I prove that my sister is abusing a power of attorney

You can prove that your sister is abusing a power of attorney by looking at your parent’s financial statements and property records. If your sister is indeed abusing the power of attorney, then you will see transfers of money or property to your sister or unexplained cash withdrawals. You can ask your parent to show those documents to you or to give you access to those documents. If that is not possible, then your attorney would know how to get those documents.

A power of attorney has a lot of potential for your sister to abuse it

If your parent gave your sister a power of attorney, it may make sense for you to look closely into the arrangement. Perhaps ask for some financial records just to be on the safe side. You can never be too careful when it comes to power of attorney, due to the potential for abuse. A power of attorney gives your sister the authority to make legal and financial decisions for your parent regarding such matters as

• bank accounts, including withdrawals and transfers
• the purchase and sale of real estate
• management of assets
• stock and bond transactions
• retirement plans
• investments
• buying and selling assets
• It is successfully contested and is revoked by the court

By creating a power of attorney and giving someone such important powers, there is a potential for fraud, self-interest and embezzlement by a your sister, especially where large sums of money and substantial assets are involved and readily accessible. A situation where large sums of money and substantial assets are involved and readily accessible can create a temptation that would be hard for your sister to resist.

A power of attorney is in effect until

• The person who made it dies
• It expires (if it has an expiration date)
• It’s revoked by your parent, who can revoke it by giving written notice to your sister

How much does it cost to hire a lawyer for this type of matter

Attorneys generally charge by the hour. In our firm, we charge $400 per hour and require a retainer deposit of $4,000 to work on a case. No one likes to spend money on lawyers, but if the alternative is your parent continuing to suffer power of attorney abuse and your future inheritance to keep getting diminished, it seems like an easy choice to make.

We at the Law Offices of Albert Goodwin are here for you. We have offices in Brooklyn, NY, Manhattan and Queens. You can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

Can the executor give away property? In most cases, no, especially if the property has any value.

Estate property does not belong to the executor – he is just managing it. By giving it away, he’s taking it 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.

If you are asking if an executor can give away property and you would like to consult an attorney, you can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

Let’s say an estate contains a house that is worth $1 million and the executor gives it away for free. This gives the recipient the opportunity to sell the house on the market and walk away with $1 million, or live in a $1 million house having paid nothing for it. Even if the executor is one of the beneficiaries, he is responsible to manage the estate for everyone’s benefit, not just his own.

The estate belongs to all the beneficiaries. If an executor uses the estate’s money for his own needs in any way or transfers estate money to himself, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he takes four thousand dollars, he is not taking four thousand dollars of his own money. He is stealing a thousand dollars from each of his siblings. If he takes a penny, most of that penny belongs to the other beneficiaries.

What can happen if an executor neglects good advice and gives away property or house of the estate? Nothing good. The executor can be removed by the judge on the case. The court will force the executor to return the property to the estate or pay restitution to the beneficiaries of the estate. 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 that contains the property. 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 cannot give away property because the property 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.

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]

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 property. If an executor gives away property of the estate, 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 from 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 giving away the decedent’s business, house, or other property, 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 the assets are collected or sold and the debts are paid out, and 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 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 what property went into the estates, what the expenses were, and what is the share of inheritance for each beneficiary.

To sum up, executors should not give away property, unless it is for fair market value and with either signed consent from each and every beneficiary or an order of the court authorizing the executor to give away the property.

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 is giving away property of the estate for less than full market value, or if you are an executor and you feel that you are being falsely accused, we at the Law Offices of Albert Goodwin are here for you. You can call us at 718-509-9774 or you can send us an email at attorneyalbertgoodwin@gmail.com.

[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

An executor is responsible for managing the estate. When a will has multiple executors, they are called co-executors. Can one executor act without the other, or do they have to work together?

It is essential to understand the rights and responsibilities you possess when you are named a co-executor on a will in New York City. This article will cover common co-executor questions asked of New York City estate attorneys.

Co-executors must work as a team when making decisions for the estate. They all hold the same authority over the estate. The court and the beneficiaries will hold each co-executor equally responsible for estate duties.

The will should contain an outline of the responsibilities that the co-executors hold. These duties are:

• Paying taxes
• Dealing with the deceased individual’s debts
• Closing out administrative expenses
• And more

Making decisions regarding these duties is the responsibility of all co-executors. Some of the decisions may already be addressed in the will.

If you would like to consult an attorney about one executor acting without the other, you can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

Can joint executors act independently? One co-executor can make decisions on the estate. The law sees each co-executor as one entity, so if one co-executor acts on duty or makes a decision, it reflects as if all did the action. This does not always end up so well. It is crucial to retain a check and balance between all co-executors, as acting without the consent of other co-executors can end up in a conflict, which can end up with the court reversing the co-executor’s decision.

It is always favorable that co-executors work together to achieve a positive result in executing the duties of the estate. When this does not work out, disputes can arise. If the co-executor cannot agree on a decision, then a third-party intermediary may be necessary to draw out a final compromised conclusion. The co-executors will eventually have to agree to disagree and come up with a solution to the conflict.

If one co-executor has decided that the others did not authorize, a lawsuit may be the next step to reverse that particular action. A judge will hold a hearing for the co-executors to present their cases, and then the judge will make a decision that will favor one over the other. All co-executors will have to abide by the judge’s decision.

Having more than two co-executors can cause increased conflicts, as there must be a unanimous decision made among all executors regarding the estate. One act done by one individual co-executor, is seen by law as all executors acting upon the decision, so it’s best to have all co-executors communicate and always be in agreement, as opposed to one of the executors acting without the other.

If you are an executor who needs representation in a New York City estate matter, 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.

Let’s say an executor is managing an estate that has a couple of beneficiaries who are inheriting a house, and one of them is living in that house and is refusing to move out. Can the executor evict that beneficiary?

The executor will face somewhat of a Catch-22. When the executor of the estate asks the Landlord-Tenant Court to evict the beneficiary, the Landlord-Tenant Court might refuse, saying that the beneficiary has a right to stay in the house as a partial owner. When the executor asks the Surrogate’s Court to ask the beneficiary to leave, the Surrogate’s Court will say that it’s not within their jurisdiction to evict someone from the property, you should go to Landlord-Tenant Court.

Faced with this run-around, the executor might have an option of instead of evicting the beneficiary, filing a partition proceeding in the Surrogate’s Court or in the basic trial court (called Supreme Court in New York). Because what the executor is dealing with is not an eviction but a determination of each beneficiary’s right in property. Once each beneficiary’s right is determined, instead of evicting a beneficiary, the court will appoint a receiver who will sell the property at auction. Once the receiver sells the property, takes his cut and gives the rest of the money to the estate, the executor will be able to distribute the money to beneficiaries of the estate.

It will then be up to the new owner to evict the beneficiary. The new owner will not have a Catch-22, unlike the executor. Because the beneficiary is no longer a partial owner, as the house was sold at auction by the receiver. The beneficiary is now considered a squatter, and evicting him will be the same as evicting a squatter in New York – it will take some time, but is doable.

If you would like a consultation with an attorney regarding an executor evicting a beneficiary, you can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

Filing a partition proceeding is not the most desirable course of action. A partition proceeding has many issues:

• takes a long time
• involves expensive estate attorneys’ fees
• involves paying a receiver a percentage of the sales price of the house
• will net a very low price for the house because it’s a house sold at auction with a squatter in it

A cheaper option would be to explain all of this to the beneficiary who is in the house and make a deal with them, perhaps signing an agreement committing to give them a bigger share of the house then they would otherwise have been entitled to. It’s not exactly fair, and it doesn’t allow the executor to evict the beneficiary, but it does save time and money for everyone.

You can see this in the court opinions. In Matter of O’Hara, the Judge of the Queens Surrogates’s Court Peter Kelly wrote that the Surrogate’s Court did not have the jurisdiction to help the executor evict the beneficiaries residing in the estate property. In his opinion, Judge Kelly suggested that the executor turns to the Supreme Court instead, with a partition proceeding. Judge Kelly explained that Title to real property devised under a will vests in the beneficiary at the moment of the testator’s death ^[1]   Unless otherwise directed by the will, the executor does not take title to the real property of the testator since title vests in the devisees subject only to divestment pursuant to court order to pay estate debts. ^[2]

If you are faced with a situation where an executor is thinking about evicting a beneficiary or are involved in a partition proceeding and you need the services of a New York estate lawyer, you can give me a call. My name is Albert Goodwin and you can reach me at (212) 233-1233.

[1] Matter of Seviroli, 31 AD3d 452, citing Waxson Realty Corp. V. Rothschild, 255 NY 332, Barber v. Terry 224 NY 334, and Matter of Payson, 132 Misc 2d 949

[2] See, DiSanto v Wellcraft Mar Corp, 149 AD2d 560,562 citing Matter of Rich,27 Misc 2d 364,371

While the majority of executors and administrators handle probate timely and adequately, there are times where an executor refuses to act. There are steps that you can take to hurry the executor along and protect your interest in an estate. You are entitled to a full accounting of the estate’s assets and to the timely distribution of the estate’s assets.

By compelling an executor to provide a full accounting and fulfill the bequests in the will, a New York estate attorney can help you protect your rights. If you would like a consultation with an attorney, you can send us an email at attorneyalbertgoodwin@gmail.com

The seven-month waiting period

Just because you are waiting doesn’t mean that the executor is not acting – they may be doing other things.

Under most circumstances, you don’t receive your inheritance right away. There is a waiting period.  According to New York law, creditors have seven months to claim what is owed by the estate. This time limitation creates an idea of how long it will take to get your inheritance. It may be that the executor is not refusing to act, he is simply waiting out the required period.

Litigation delays

If there is litigation involved, then there could be a more extended period going by before you can collect your inheritance. Different types of litigation can affect an estate.

• A medical malpractice claim
• A business dispute
• Real estate eviction
• The validity of the decedent’s will
• The qualification of the executor

Litigation can add years to an estate proceeding and may give an impression that the executor is refusing to act.

Delays in marshaling assets

Before the executor can distribute assets, the executor has to find the assets first. If the decedent did not leave a detailed list of the assets in the estate, then the executor will have to perform multiple searches.

• Look through the decedent’s documents
• Find decedent’s safe deposit boxes
• Search for real estate
• Search for other assets

As long as the executor is performing their duties, they are not refusing to act, even if they are not yet ready to distribute the assets.

If the executor refuses to act and has no good reason

Once seven months have passed, and the executor is still not releasing money or property left by the estate, then the executor may be refusing to act.

We would first file a petition or an accounting of an estate, to get an idea of what the executor is claiming is left for distribution. If there are disagreements over what is in the estate, we resolve those disagreements before moving on to the distribution stage.

Once the accounting is resolved, we file a petition to compel a distribution, to ask the court to force the executor to stop refusing to act and to release the inheritance. This law is meant to protect you from an executor who either is lax in handling their duties or is purposefully refusing to distribute the inheritance. The law lets you ask the court through a New York estate attorney to force the executor to turn over property that you are entitled to.

This is not the same as another kind of petition that compels the executor to pay out inheritances in advance of the seven months that creditors have to file a claim against an estate. That part of the law is meant to force the executor to pay out to heirs who need estate assets for family support or education. The motion to compel for a regular inheritance also does not include a motion to compel the executor to release non-probate assets such as jointly held bank accounts or property.

If you would like to know more about your options when the executor is refusing to act, 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.

Can an executor transfer property to himself? Only if he pays fair and full market value for it, or if the transfer is being done as part of distributing the estate, with equal distribution among all the beneficiaries and in accordance with all the applicable rules.

Estate property 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.

If you need to consult with an attorney who is experienced in executors is transferring property to themselves, you can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

Let’s say an estate contains a house that is worth $1 million, and the executor transfers it to himself for $200,000. This gives him the opportunity to “flip” the house on the market and walk away with $800,000 or live in a $1 million house having only paid $200,000. Even if the executor is one of the beneficiaries, he is responsible to manage the estate for everyone’s benefit, not just his own.

The estate belongs to all the beneficiaries. If an executor uses the estate’s money for his own needs in any way or transfers estate money to himself, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he takes four thousand dollars, he is not taking four thousand dollars of his own money. He is stealing a thousand dollars from each of his siblings. If he takes a penny, most of that penny belongs to the other beneficiaries.

What can happen if an executor neglects good advice and transfers the house to himself for less than fair market value? Nothing good. The judge on the case can remove the executor. The court will force the executor to return the property to the estate or pay restitution to the beneficiaries of the estate. 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 that contains the property. 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 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 is stealing and can lead to an array of legal woes.

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]

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 property. If an executor transfers the property to himself, even if he’s paying something for it, 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 from 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 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, in order to avoid the possibility of being sued. Transferring assets to yourself often triggers feelings of inequity in beneficiaries, so it is important to communicate with them, explain that they are still getting a fair share of the estate and that they are actually getting more money than they would have if not for you buying them out because of cost savings on transaction costs such as paying a broker. It is important that there is a feeling that the executor fulfilled his responsibilities to the beneficiaries.

The most crucial release that an executor can get from the beneficiaries is at the end of the estate. Once the assets are collected or sold and the debts are paid out, and 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 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 what property went into the estates, what the expenses were, and what is the share of inheritance for each beneficiary.

To sum up, executors should not transfer estate property to themselves, unless it is for fair market value and with either signed consent from each and every beneficiary or an order of the court authorizing the executor to transfer the property to himself.

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.

Some court opinions have ruled that executor transferring property to himself is intrinsically not allowed, even if they pay a full market value for the property.

Whether you are a beneficiary who thinks that the executor is transferring property to himself, or if you are an executor and you feel that you are falsely accused of transferring property to yourself for less than fair market value, 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] 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