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Cousin Stealing from an Estate: What You Can Do About It

Cousin stealing from an estate
When your cousin 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 cousins have a strained relationship or when they were geographically separated for a long time, they will sometimes deny the other cousins their share of the inheritance.

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

Do you see a sudden increase in your cousin’s spending? Is your cousin 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 cousin 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 an executor refuses to return the money, we sue the executor and execute his property in favor of the estate. There are a number of remedies available to force your cousin to return the money.

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

Turnover Proceeding. If your cousin 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 cousin 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 cousin is found to steal money or property but the money is impossible to recover from your cousin.

But how about if your cousin 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-cousin steal from the estate and say that he is just withdrawing his own cash? The answer to that is absolutely not. Even though your cousin 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 cousin withdraws cash from the estate account, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he withdraws four thousand dollars in cash, he is not considered to be taking four thousand dollars of his own cash from the estate account. Rather, he is considered to be stealing a thousand dollars from each of his cousins. If he withdraws a penny, most of that penny belongs to the other beneficiaries.

What are the potential penalties for your cousin?

What can happen if your cousin is an executor and neglects good advice and steals from the estate? Nothing good. Your cousin can be removed from being executor can be by the judge on the case. The court will force your cousin to return the money. The court might order your cousin 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 your cousin to pay the wronged cousin’s attorneys’ fees. What is scarier is that if your cousin 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 he took is less than his 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 cousin 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 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]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 cousin 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, cousins 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 cousin to disburse the funds.

Whether you are a beneficiary who thinks that your cousin is stealing from the estate account, or if you are an executor and you feel that your cousin 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

Sister Stealing from an Estate: What You Can Do About It

sister stealing from an estate
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.

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

Brother Stealing from an Estate: What You Can Do About It

brother stealing from an estate
When your brother 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.

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

Do you see a sudden increase in your brother’s spending? Is your brother 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 brother 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 an executor refuses to return the money, we sue the executor and execute his property in favor of the estate. There are a number of remedies available to force your brother to return the money.

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

Turnover Proceeding. If your brother 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 brother 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 brother is found to steal money or property but the money is impossible to recover from your brother.

But how about if your brother 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-brother steal from the estate and say that he is just withdrawing his own cash? The answer to that is absolutely not. Even though your brother 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 brother withdraws cash from the estate account, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he withdraws four thousand dollars in cash, he is not considered to be taking four thousand dollars of his own cash from the estate account. Rather, he is considered to be stealing a thousand dollars from each of his brothers. If he withdraws a penny, most of that penny belongs to the other beneficiaries.

What are the potential penalties for your brother?

What can happen if your brother is an executor and neglects good advice and steals from the estate? Nothing good. Your brother can be removed from being executor can be by the judge on the case. The court will force your brother to return the money. The court might order your brother 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 your brother to pay the wronged brother’s attorneys’ fees. What is scarier is that if your brother 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 he took is less than his 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 brother 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 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]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 brother 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, brothers 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 brother to disburse the funds.

Whether you are a beneficiary who thinks that your brother is stealing from the estate account, or if you are an executor and you feel that your brother 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

Sibling Stealing from an Estate: What Can You Do About It

sibling stealing from an estate
When your sibling 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.

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

Do you see a sudden increase in your sibling’s spending? Is your sibling 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 sibling 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 an executor refuses to return the money, we sue the executor and execute his property in favor of the estate. There are a number of remedies available to force your sibling to return the money.

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

Turnover Proceeding. If your sibling 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 sibling 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 sibling is found to steal money or property but the money is impossible to recover from your sibling.

But how about if your sibling 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-sibling steal from the estate and say that he is just withdrawing his own cash? The answer to that is absolutely not. Even though your sibling 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 sibling withdraws cash from the estate account, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he withdraws four thousand dollars in cash, he is not considered to be taking four thousand dollars of his own cash from the estate account. Rather, he is considered to be stealing a thousand dollars from each of his siblings. If he withdraws a penny, most of that penny belongs to the other beneficiaries.

What are the potential penalties for your sibling?

What can happen if your sibling is an executor and neglects good advice and steals from the estate? Nothing good. Your sibling can be removed from being executor can be by the judge on the case. The court will force your sibling to return the money. The court might order your sibling 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 your sibling to pay the wronged sibling’s attorneys’ fees. What is scarier is that if your sibling 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 he took is less than his 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 sibling 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 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]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 sibling 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, siblings 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 sibling to disburse the funds.

Whether you are a beneficiary who thinks that your sibling is stealing from the estate account, or if you are an executor and you feel that your sibling 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

How Long Does an Executor Have to Sell a House?

How Long Does an Executor Have to Sell a House

It can take an executor over a year to sell a house. Consider the fact that in order for the executor to sell a house, they have to follow several steps:

  1. Get appointed as the executor
  2. Find a buyer
  3. Get a contract from the buyer
  4. Have an attorney draft the Executor’s Deed
  5. Receive the payment for the house
  6. Sign the Executor’s Deed and have it notarized
  7. Have the buyer file the deed with the city
  8. Deposit the funds into the estate account

Once you are appointed as the executor, you can look for a buyer, with or without a real estate broker. After you find a buyer, you can have your lawyer draft a contract and receive a deposit from the buyer. The lawyer can then draft an Executor’s Deed, which is the document used to sell the house to the buyer.

At the closing, the executor will sign the deed to the house and the buyer will pay for the house. The executor will deposit the money to the estate account. After getting releases from beneficiaries and creditors or a court order authorizing the distribution of funds, the executor will distribute the estate funds to the beneficiaries of the estate.

Some courts, Brooklyn in particular, require that before the executor sells the house, they have the contract approved by the courts. This is done for the executor’s own protection and for the protection of the beneficiaries, as there have been some people targeting estates in Brooklyn where they give some money to the executor up-front in order to get a steal on the house. This approval process may delay the closing date, increasing how long it takes for the executor to sell a house.

Here are some common suggestions that arise from our experience helping executors sell a house in the New York real estate market:

  1. Because the filing of probate is a public record, you will have a lot of people contacting you offering to buy the house for an “all-cash offer.” Those people are targeting estates in order to flip the house. You can hang up on those phone calls.
  2. You can find a good starting price-point for the house by checking a Zillow estimate.
  3. When you tell people you’re an executor selling a house, they will try to use that to get a better deal.
  4. If you need to sell the house fast, consider lowering the price a little, but not too much.
  5. In the New York market, it is usually not a good investment to remodel a house before selling it. If you are planning to use the estate’s assets to fix up the house, then it’s probably a good idea to get written approval from the other beneficiaries first.

As an executor who is selling a house, you want to make sure that you get the best price and not take too long, because that will get the beneficiaries to start asking how long it will take you to sell the house. You will need to get acquainted with the real estate market and make sure that you get the best price for the property. You also need to comply with the restrictions on your letters testamentary and all of the requirements of the applicable estate laws.

If you are a beneficiary who believes that it’s taking the executor too long to sell the house, or if you are an executor who is looking for an estate attorney to help you sell a house, you can call the offices of Albert Goodwin at (212) 233-1233.

Contesting a Transfer at Death

Contesting a transfer at death

Contesting a transfer at death happens when your loved one transferred their property to someone shortly before they died and you suspect that the transfer was problematic.

When it comes to estate planning, a lifetime transfer is a tool in any New York estate attorney’s arsenal. Usually, with these transfers, a person planning what will happen to their estate can make sure that property goes to his or her beneficiaries without going through the Surrogate’s Court, hope to avoid creditors or possibly plan for future nursing home stays using Medicaid. This can be very useful for someone planning their estate and their beneficiaries. However, lifetime transfers are not always done willingly or by someone with the required mental capacity to make the transfer. Sometimes undue influence is involved with lifetime transfers, and even duress.

Transfers made before death can be subject to some of the most contentious litigation when it comes to estates. This can especially be the case in matters where there are indications that property was transferred at death due to factors such as fraud or duress or where it looks like someone who held a power of attorney may have abused that power. It is unfortunately common that not all gifts are transferred all so innocently.

What You Need to Know When it Comes to Contesting a Transfer at Death

When we contest a transfer at death, we start with a demand for an accounting by the executor of the estate that includes both the property that existed in the estate before death and also the property that was transferred to others in the weeks, months and years before death.

In addition to asking for an accounting, you must understand the issues that arise around the statute of limitations when it comes to contesting transfers at death. While it is possible to contest the transfer at death, there is a limited time to do so, usually just a few years from the transfer, or, in the case of the wrongful use of a power of attorney, six years from the end of that power of attorney. While this does put limitations on the types of gifts that you can contest, the statute of limitations still does allow for a rather long period of time to contest a wrongful transfer at death. Failure to sue during this time could result in you missing out on your rights to even file suit if you feel your loved one’s property was improperly transferred.

A person dies, and it emerges that their house or bank account is not a part of their estate, because it was already transferred to someone before their death. Or, someone was named as a beneficiary on a bank account or a life insurance policy. The one it was transferred to claims that the decedent gave them the asset. The other relatives don’t buy the story, say that the decedent was tricked into transferring the property and wish to contest the transfer at death. To determine who’s right, we need to look into the three possible reasons someone transfers property at death – as a gift, as a “straw-man” to shield from liabilities, and because of being tricked.

Gift? – people do transfer their assets to a favorite relative to exclude all others.

“Straw-Man?” – People can transfer property to others in an attempt to avoid creditors or divorcing spouses, to avoid taxes, or to qualify for Medicaid. When a property is transferred for various avoidance reasons, the person who transfers the property orally tells the one getting the property that they are just a “straw-man,” keeping the property in title but really owning it for the benefit of the person who transferred it. In such cases, the person receiving the property promises the person giving the property to be a proper “straw-man,” to let the person who owned the property benefit from it during their lifetime and to distribute it to the owner’s heirs after the owner’s death.

Or, Fraud, Duress, Undue Influence or Lack of Capacity – People also transfer property without wanting to do so. Some people are so sick that they can be easily convinced to do anything. Some are so dependent on others that they are easily persuaded. Some are just slipped papers and told to sign them without knowing what they are signing. Some are misinformed about family or financial circumstances, made believe certain things that makes them transfer the property to someone they trust.

When a pre-death property transfer is discovered, the person whom the property is transferred to claims that it was a gift, and the people who are left out claim that the recipient is merely a “straw-man”, or that fraud or duress took place.

It is up to the one wishing to undo the transfer to prove why the transfer should be undone. However, if it can be proved that the recipient of the asset was in a position of trust with the one who transferred the asset, the burden of proof can shift towards the recipient.

You must keep in mind that contesting transfers at death is not something that should be taken care of without representation. Proving either incapacity, abuse of a power of attorney or fraud or duress when it comes to transfers of property can be incredibly difficult. Hiring a New York estate attorney to assist you every step of the way in such a matter is necessary to be sure that you have a chance to reverse such a transfer, recapture the property for the estate, and get access to the property that you believe you deserve. An attorney can file a proceeding for discovery of property and a proceeding for turnover of property of the estate. Your case can be even further complicated if you need to contest the will as well, as there is a much stricter time period involved when it comes to contesting a Will than there is for contesting a transfer at death.

If you are involved in contesting a transfer at death of real estate, bank accounts or insurance policies, and wish to speak with an attorney, you can call me at (212) 233-1233.

Define Beneficiary of an Estate: What Is That?

Define Beneficiary of an Estate: What Is That?

A beneficiary of an estate is a person entitled to any part or all of an estate.[1]

What is a beneficiary? That’s a broad term, which combines a legatee and a devisee and sometimes distributee into one. A beneficiary has other connotations as well. In a trust, a beneficiary is someone who receives distributions from the trustee.

Here are the other three definitions you’d need to know to make sense of this:

  • Distributee– a person entitled to take or share in the property of a decedent who died without a will.[2]
  • Legatee– a person designated by a will to receive a transfer of personal property.[3]
  • Devisee– a person designated by a will to receive a transfer of real property.[4]

These three terms apply to a will left by a decedent. These terms apply to those receiving vested property, as well as those who may have a future interest whether or not the future interest ever vests.

Legatee, devisee, distributee, and beneficiary seem like synonyms, but they are not. They have crucial distinctions. A difference in the four terms can mean the difference in

  • whether you are getting valuable property from the estate,
  • whether you have legal ability to contest the will and
  • whether you are entitled to demand an accounting of the estate.

For example, a decedent bequests his house to Bob and his heirs, with the following condition: “as long as Bob is married, and if not to Cathy and her heirs”. Decedent also devises his art collection to Cathy and her heirs. In this example: Bob is a devisee because he received the house. Bob is also a beneficiary because all devisees are beneficiaries. Cathy is a legatee because she received the art collection—a is still single when the decedent died. And Cathy is also a devisee. She stands to inherit the property in case Bob is single; thus, she has what is known as an executory interest in the property. We consider Cathy a devisee even if she never gets the property because Bob stayed single. Consequently, Cathy is also a beneficiary.

New York’s estate law is complicated. The statutory application of estate distribution applies to a singular recipient or a class of types of recipients. Those complications are due to a combination of old common law terminology and modern definitions.

Understandably, this terminology can be hard to parse. It is always best to speak with a New York estate lawyer about your status and potential options. I am a New York estate, guardianship, wills, trust, Medicaid and probate lawyer with over a decade of experience. If you would like to speak to me, you can reach me at (212) 233-1233.

[1] SCPA 103(14).

[2] SCPA 103(33) (McKinney 2018).

[3] SCPA 103(8).

[4] SCPA 103(13).

[5] In re Reape, 974 N.Y.S.2d 496 (2013).

Theft from Estate Before Inventory

theft from estate before inventory

With theft from estate before inventory, the executor often hides the stolen property and does not report it on the inventory. The executor likes everyone to think that the property is “outside of the estate,” which is not true. Theft from estate before inventory can incur significant penalties for the thief. The court can discharge the executor and replace them with someone else, force them to return the money and take away their commissions. There can also be criminal a penalty, but most estate theft allegations do not escalate to criminal prosecution, especially when family is involved.

Civil Penalties for Theft from the Estate Before Inventory

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.

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 of the estate that was subject to the theft.

Discharge of executor. If the person involved in the theft 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 stealing from the estate, the court can take away the executor’s right to receive the commission.

Criminal Penalties for Theft from the Estate Before Inventory

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 stealing 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 Penalties

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 that 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.

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, you can speak with New York estate attorney Albert Goodwin, Esq. at (212) 233-1233.


[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

The Penalties for Looting an Estate

Penalty for Looting an Estate

There are significant penalties for looting an estate. The court can discharge the executor and replace them with someone else, force them to return the money and take away their commissions. There can also be criminal a penalty, but most estate theft allegations do not escalate to criminal prosecution.

Civil Penalties for Looting an Estate

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.

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 he wrongfully transferred.

Discharge of executor. If the person caught looting 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 looting the estate, the court can take away the executor’s right to receive the commission.

Criminal Penalties for Looting an Estate

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, even if they are one of the beneficiaries. Taking more than you are entitled to by law can be interpreted as looting 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 looting 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. Whether the executor is caught looting 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 looting the estate, 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 someone looting an estate. The sentence depends on the amount that the executor loots. 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] Executors are not the only ones who can be accused of looting 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 Penalties

Do not take more funds that 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 looting 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.

Whether you are a beneficiary and you are claiming that the executor is looting the estate or if you are an executor and you insist that the transfer of money or property was proper, you can speak with New York estate attorney Albert Goodwin, Esq. at (212) 233-1233.


[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

I Was Not Notified of My Brother’s Death

One of your other siblings or your brother’s caretaker was supposed to notify you of your brother’s death, but they did not. They should have notified you, but they did not. It’s possible that the person who did not inform you had more access to your brother.

They may have lived closer to him and had more interaction with him. They may or may not have informed you of the date of death, of the wake, funeral or showing. Your emotion at this point may be, you feel left out and cheated out of the important process of saying good-bye to your brother and robbed of a chance to grieve their death at a proper time. You may be experiencing shock and anger at the conduct of those who did not notify or inform you of your brother’s death.

You may also be concerned with the issue of their estate or inheritance. Concerned that the same people that did not inform you about his death also kept you in the dark about his assets and what happened to his estate. You may be concerned that they had your brother leave a will cutting you out or giving you a diminished share, and you may suspect that they might have gotten a hold of your brother’s assets while he was alive. You think that they may be hiding assets from you.

In addition to not informing you of your brother’s death, they are probably also refusing to communicate with you regarding his last will and testament, pension plan, insurance, house and other assets. They are probably refusing to give you information and notices about the estate.

The person who did not notify you may be your brother’s agent under a Power of attorney. They may also be an agent under your brother’s Health Care Proxy (New York name for a Health Care Power of Attorney).

You suspect that since they did not notify you of your brother’s death, there may be other things that they did not notify you about, like your brother making a will that diminishes your interest in his inheritance.

In New York, there is no lawsuit that you can bring to ger reimbursed for the mental anguish that this betrayal has cost you. But you do have important rights in regards to your brother’s remains and the estate that they left behind.

It is unfortunate when family dysfunction shows itself after an brother’s death. The people who did not notify you may be angry and confused and they may be trying to take that anger out on you. You in turn may be angry at them for not notifying you. It’s important to address the feelings of grief and anger and not let them cloud everyone’s judgment.

You have the right to be present at the funeral, even if your cousins or his caretaker don’t want you there. You may have the right to determine how your brother’s remains are laid to rest. You have the right to receive a copy of his will. If you suspect that the will is invalid, you have the right to contest the will. The grounds for contesting a will are incorrect will execution, lack of mental capacity, undue influence, fraud and duress. Your brother may have suffered from a stroke and may have been diagnosed with Alzheimer’s or dementia, which may have diminished his mental capacity to make a valid will.

If you were not notified of your brother’s death and have questions about what happens next, you can call the Law Offices of Albert Goodwin at (212) 233-1233 or (718) 509-9774.