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

theft from an estate before inventory

Theft from an 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. We at the Law Offices of Albert Goodwin are here for you. You can send us an email at [email protected] or call us at 718-509-9774.

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 [email protected].

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 212-233-1233 or send us an email at [email protected].


[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

How to Get a Copy of a Trust Document

You can get a copy of a trust document by asking the trustee for a copy. If they refuse to provide it, you can compel them to provide a copy through a Surrogate’s Court proceeding to compel a copy of the trust.

Unlike wills that are admitted to probate, trusts are not part of public records. If you are a beneficiary to a trust, to obtain a copy, you will need to contact the trustee by making a written request. Another way is to have another beneficiary get you a copy. If you are unsure if you are a beneficiary to a trust, you can write to the trustee to inquire whether you are a named beneficiary.  A trustee must automatically provide a named beneficiary under a trust with a copy of the trust instrument. However, if you are not a beneficiary, the trustee is under no legal obligation to provide you with a copy.

If you are a beneficiary looking to hire a lawyer to get a copy of a trust document, we at the Law Offices of Albert Goodwin are here for you. You can call send us an email at [email protected] or call us at 718-509-9774.

sample copy of a trust document front page

What happens if a trustee fails to provide the beneficiary with a copy of the trust document?

If the trustee ignores your request and fails to provide you with a copy of the trust, it is recommended that you contact a New York City trust attorney to assist you with the matter. An attorney can advise you if you have sufficient grounds to file a petition with the New York City Surrogate’s Court asking the Court to issue an order compelling the trustee to provide you with a copy of the trust.  If it is determined that you do have sufficient grounds, the attorney can prepare the petition and represent you at the hearing, so that you can get a copy of the trust.

If you are a beneficiary of the trust, the court will usually order the trustee to provide a copy of the trust. In a separate proceeding, the court will order the Trustee to account for the Trust’s assets. Trustees can be removed for failure to account for the corpus of the trust and for failure to comply with the court order and provide a copy of the trust to the beneficiaries.

Since trust matters are complicated, find a New York City trust attorney who is the most qualified to assist you with finding out whether you are entitled to an inheritance under a trust and obtaining a copy of the trust document.  If you wish to speak to an experienced New York City trust attorney, call the Law Offices of Albert Goodwin at 212-233-1233 or send us an email at [email protected].

Can One Heir Sell Property

Can one heir sell property of the estate

For those wondering “can one heir sell property of an estate,” the short answer is Yes, if they are the executor, unless there are restrictions in his Letters Testamentary which require court approval before selling the property or there is a restriction that limits the administration of the estate to a certain amount. The sale has to be for market value and for benefit of all of the heirs.

Once one heir is appointed by the court as the executor, the one heir may act on the authority of New York State law to marshal the assets of the estate, pay debts and expenses and disburse the remainder of the estate to the rightful beneficiaries. That can include a house, bank account, stock portfolio, automobiles, and any other assets of an estate.

However, even though the one heir who is the executor does not legally have to have the beneficiaries’ approval, it may still be a good idea for them to communicate with the beneficiaries in a way that can be later proven in court (such as email) to confirm in writing that they agree with one heir’s decision.

For example, if one heir is selling a property of an estate, such as a house or a business, they will do well to advise beneficiaries of the price for which the asset is being sold and confirm in writing that the beneficiaries are comfortable with that price, so as to avoid being sued in the future for “selling it under market value. Is it a good idea for one heir to sell the property without all beneficiaries approving? Not really. Putting himself in such a risky position is what one heir cannot do.

Having your New York estate lawyer get a release form beneficiaries is especially crucial when the transaction in question involves the one heir personally, such as when the transaction is between the estate and the one heir or the one heir derives some sort of benefit from the transaction. For example, if the one heir is transferring a share of the decedent’s business, house, or other property to themselves, they 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 one heir fulfilled his responsibilities to the beneficiaries.

The most crucial release that the one heir 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 them to disburse the funds to the beneficiaries. But before that’s done, 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 one heir. 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.

Assets that were held in the sole name of a New York City decedent at the time of the decedent’s death are subject to probate under New York laws. Assets may include cash in bank accounts, real estate, stocks, bonds, motor vehicles and vessels, a family business, royalties and copyrights and other assets. One heir who is in charge, together with the assistance of a New York City estate attorney, must compile a list of the decedent’s assets and prepare an inventory. A New York probate attorney can also recommend other professionals that one heir may need to hire to determine the value of the assets such as an appraiser, real estate broker and CPA or accountant.

An estate inventory is required to be submitted to the Surrogate’s Court within 6 months after one heir of the estate is appointed. Compiling the estate inventory also gives you a chance to determine the total value of the estate and the amount of any estate taxes that are due. Your estate attorney will review the inventory to make sure that everything is in order before it is submitted to the Surrogate’s Court for review and approval.

Assets That May Need to Be Sold

The One heir in charge is obligated to review creditors’ claims and other claims submitted by the decedent’s creditors and interested parties to the estate. Creditors and other claimants must submit their claims within the prescribed statutory period in order to get paid. Sometimes, one heir must sell some of the estate assets to pay off creditors.

Assets that may need to be sold are as follows:

• Decedent’s primary residence, vacation property or retirement property or any commercial real estate
• Family business including business equipment and business assets
• Stocks, bonds and other investments
• Collectible items including artwork, classic cars, etc. and memorabilia
• Furniture and household furnishings
• Jewelry

Many times the one heir will discuss the sale of the decedent’s assets with the other heirs, to make sure that everyone is in agreement so as to avoid any estate litigation accounting challenges later on by one or more of the beneficiaries. One heir may also decide to sell assets even if they are not needed to pay off creditors. For example, many times the decedent’s family members and beneficiaries decide that they would rather receive the cash proceeds from the sale of the decedent’s house than keep the property and have to become landlords.

Large estates, especially celebrity estates, often have estate sales where items are auctioned off at public auctions. Smaller estates may simply decide to sell assets in an informal sale.

If you are an heir who is involved in the sale of estate assets, or you are a heir or interested party who would like to expedite the closing of an estate, contact a New York City probate and estate attorney to assist you with the matter. An attorney can help with locating and selling estate assets, preparing and reviewing accountings, attending court hearings and making sure court and tax deadlines are met on time.

Can one heir sell property of the estate below market value? No. Selling the property of the estate for less than market value for entities controlled by one heir, or getting money “under the table” is embezzlement, or more simply, stealing.

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 owns the house. If one heir uses the house to benefit himself at the expense of the beneficiaries, he would be committing embezzlement, which is 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]

Someone who is a heir but not an administrator or an executor, and even an heir who is the executor nominated by the will but has not been appointed by the court to act as the executor does not have the power to sell a house. The law states that “an executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, except to pay reasonable funeral expenses, nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it. [6]

To sum up, can one heir sell property of the estate? Yes, if they are the executor or administrator of the estate. The executor does not have to seek the beneficiaries’ approval, but in many cases, it is better to do so before the transaction rather than to be sued by the beneficiaries later.

Albert Goodwin, Esq. is a New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss spousal claims and rights to the estate. He is in practice since 2008. He can be reached at (212) 233-1233.

————-

[1] NY EPTL § 11-1.1

[2] In re Estate of Naumoff, 301 A.D.2d 802, 803, 754 N.Y.S.2d 70 (3d Dep’t 2003)

[3] NY EPTL § 11-1.6

[4] NY PEN § 155.05

[5] NY PEN § 155.05

[6] NY EPTL § 11-1.3

Executor Not Communicating with Beneficiaries. How Do I Find Out What’s Going On?

executor not communicating with beneficiaries

When an executor is not communicating with beneficiaries, this creates a problem for both the executor and the beneficiaries.

The beneficiaries may lose their patience and bring a proceeding to compel the executor to file a judicial accounting. A good executor will avoid this costly step. Accordingly, this is the kind of information that the executor should provide to the beneficiaries:

  • What is the executor planning to do
  • What stage is the probate in
  • Is there anything that the beneficiaries need to do
  • When are the beneficiaries getting forms to sign and what are the forms
  • How much money and assets are in the estate
  • What are the major expenses of the estate
  • Is the executor planning to sell real estate, and if yes, when
  • When is the executor sending out the distribution checks

If your issue is executor not communicating with beneficiaries and you would like to consult an attorney, you can send us an email at [email protected] or call us at 718-509-9774.

An executor is a fiduciary, meaning that he has a duty to exercise the utmost good faith and undivided loyalty toward the beneficiaries throughout the relationship.[1] Some might argue that the duty to exercise “good faith and undivided loyalty” includes a duty to communicate. An executor “must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing.” [2] Again, some might argue that the principles of fair dealing include a duty to communicate.

If the executor is not communicating with beneficiaries, it causes them to think that the executor is hiding something from them. And they feel that the executor could be doing something that will result in the beneficiaries not getting their fair share of the estate from the executor. Here is what the beneficiaries suspect the executor of doing:

  • hiding money
  • hiding information
  • stealing money from the estate
  • taking property from the estate
  • making mistakes
  • not making the right decisions
  • ignoring executor responsibilities

What beneficiaries can do if the executor is not communicating with them

If the executor is not communicating with the beneficiaries, they can bring a proceeding to have the judge of the Surrogate’s Court compel the executor to file an account of the estate. [3] If ordered to submit an accounting, the executor will have to submit the accounting to the court, usually within thirty to sixty days.

An estate accounting is a set of schedules that include all possible information about the estate, such as

  • an itemized list of the assets that are in the estate
  • the funds or property received by the estate
  • the expenses of the estate
  • the beneficiary distributions already disbursed and
  • the beneficiary distributions yet to be disbursed

Beneficiaries and their estate attorney can review the schedules and decide that they are satisfied with the information. Or, the beneficiaries can compel the executor to provide all of the documents associated with the estate as well as the executor’s personal documents. Beneficiaries are entitled to documentation, such as

  • account statements
  • closing statements
  • copies of checks
  • tax returns
  • loan applications

Every executor not communicating with beneficiaries needs to realize that the miscommunication is short term. Beneficiaries do get their information eventually, whether the executor wants it or not. It is better for the executor not to upset the beneficiaries. It is best for the executor to communicate with the beneficiaries. Avoiding acrimony means saving having to go through the stress and expense of litigation.

Why some executors don’t communicate with beneficiaries

Here are a few scenarios that explain why executors don’t communicate with beneficiaries:

The executor does not realize the importance of communication: Sometimes the executor does not know that the beneficiaries expect him to be communicating. This is especially true for a first-time executor. If that is the case, a phone call, email or letter may clear up this misunderstanding. It’s good for the beneficiary to give the executor a call and ask what’s going on with the estate.

The executor is not a good communicator: Some executors are not good at communicating. They think that as long as they are doing everything right, they do not have to advise the beneficiaries. If that’s the case, then it’s good for the beneficiary to take the initiative and open up the channel of communication.

Arrogance: Some executors relish the feeling of power and control, and they want to extend that feeling into an ability to keep the beneficiaries in the dark. A beneficiary who is proactive and is represented by a competent attorney can taper some of that arrogance by showing the executor that they don’t have unlimited power, that they have responsibilities and that there are rules that they have to follow.

Incompetence: While some executors are just confused, some other executors end up making mistakes that are costly to the estate. If that’s the case, the next step for a beneficiary would be to compel the executor to file a formal accounting with the court. In a formal accounting, an executor is obligated to disclose what assets are in the estate, what the estate’s expenses were and what assets are available for the executor to distribute to the beneficiaries.

Misconduct: A minority of executors go as far as to steal from the estate and mismanage the estate and then attempt to cover up their misdeeds by not communicating with the beneficiaries. Beneficiaries do have recourse against an executor who violates his duty to the estate. The recourse involves court intervention, such as requesting an accounting.

Some executors think it’s too early to communicate: An executor who has not been confirmed by the court yet might think that it’s too early to communicate anything substantial to the beneficiaries since he has not started doing anything yet. Someone who has been nominated as the executor by the will but is not yet appointed by the court might think that they are not an executor yet. The law states that “an executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, except to pay reasonable funeral expenses, nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it. [4] An executor who has not been appointed might think that it’s too early to communicate anything substantial to the beneficiaries since he does not even have the power to do anything yet. This is a misunderstanding that an estate lawyer can easily resolve.

Do you have a situation with the executor not communicating with beneficiaries or withholding information? Or if you are an executor and you think that the beneficiaries are wrongly accusing you of misconduct? If so, 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 protected].

[1] Leon C. Lazer, et al., New York Pattern Jury Instructions – Civil § 3.59 (2d ed. 2006); see also Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409, 416, 754 N.E.2d 184, 729 N.Y.S.2d 425 (N.Y. 2001); Lamdin v. Broadway Surface Advertising Corp., 272 N.Y. 133, 138, 5 N.E.2d 66, 67 (N.Y. 1936);

[2] In re Estate of Naumoff, 301 A.D.2d 802, 803, 754 N.Y.S.2d 70 (3d Dep’t 2003).

[3] NY SCPA § 2205

[4] NY EPTL § 11-1.3