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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. How Can I Get the Money Back?

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.

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

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

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

As a matter of fact, you can put this article on pause and try to get in touch with her right now.

If that worked, great, we’re done here.

If that did not work, you can keep on reading. Your next step would probably be to sue your sister in court. If you need an attorney to recover stolen inheritance, you can send us an email to attorneyalbertgoodwin@gmail.com.

Once you get an attorney, they will ask you about the circumstances of the theft. Eventually, your attorney will put all of those circumstances in writing and will submit the writing to the court in a form of a petition or complaint.

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

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

What can we do about the theft?

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

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

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

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

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

What are the potential penalties for your sister?

What can happen if your sister is an executor and neglects good advice and steals from the estate? Nothing good. Your sister can be removed from being executor can be by the judge on the case. The court will force your sister to return the money. The court might order your sister to pay for her own attorneys’ fees as opposed to using estate funds to pay for her attorney’s fees. The judge may even order your sister to pay the wronged sister’s attorneys’ fees. What is scarier is that if your sister is an executor, they could be criminally prosecuted for stealing. That’s right, a criminal prosecution even if the executor is one of the beneficiaries of the estate and even if the amount she took is less than her stake in the estate account. The Surrogate’s Court judge can refer the case to the District Attorney’s office, which has the power to prosecute the case in criminal court.

Although we talk about a sister who is an executor, the same rules apply to an administrator and a trustee, as well as a preliminary executor, administrator d.b.n., administrator c.t.a.d.b.n., administrator c.t.a., ancillary executor, ancillary administrator, and ancillary administrator c.t.a. [1]

Above, we’ve referred to the executor as a manager. The legal term for someone managing money, including an executor is “fiduciary.” [2] New York’s Estates, Powers and Trusts Law governs the conduct of an estate fiduciary, as well as a trustee and an agent under a Power of Attorney.

New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 11-1.6 states that “Every fiduciary shall keep property received as fiduciary separate from her individual property.  He shall not invest or deposit such property with any corporation or other person doing business under the banking law, or with any other person or institution, in her own name, but all transactions by him affecting such property shall be in her name as fiduciary.” [3]This includes taking cash from an estate account.

New York’s Penal Law (the Criminal Law) states that “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” [4]

The estate is the owner of the funds. By stealing from the estate account, a sister who is an executor commits larceny.

New York Penal Law continues to say that “Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed … by conduct heretofore defined or known as common law larceny by trespassory taking, common-law larceny by trick, embezzlement, or obtaining property by false pretenses.” [5]

To sum up, sisters who are executors should keep estate funds where they belong-in the estate account. Whenever they receive any funds relating to the estate in any way, those funds should be deposited into the estate and not withdrawn without either signed consent from each and every beneficiary or an order of the court authorizing your sister to disburse the funds.

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

[1] NY EPTL § 11-1.1

[2] NY EPTL § 11-1.1

[3] NY EPTL § 11-1.6

[4] NY PEN § 155.05

[5] NY PEN § 155.05

Brother Stealing from an Estate. How Can I Get the Money Back?

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.

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

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

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

As a matter of fact, you can put this article on pause and try to get in touch with your brother right now.

If that worked, great, we’re done here.

If that did not work, you can keep on reading. Your next step would probably be to sue your brother in court. If you need an attorney to recover stolen inheritance, you can send us an email to attorneyalbertgoodwin@gmail.com.

Once you get an attorney, they will ask you about the circumstances of the theft. Eventually, your attorney will put all of those circumstances in writing and will submit the writing to the court in a form of a petition or complaint.

What are the red flags that your 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

My Sibling Cheated Me Out of an Estate. Can I Still Get My Rightful Share?

sibling stealing from an estate

If you find yourself in a situation where your sibling cheated you out of your inheritance, don’t lose hope. You have legal avenues to pursue and a qualified estate attorney can give you the best chance of getting back your rightful share of money and property.

To get back an inheritance from your sibling, first, identify how it was taken. Here are the most common types of inheritance theft:

You can click on the link above that applies to your case and it will take you right to the section that deals with it.

For each case, different evidence is needed. To get the best chance of success, work with an expert estate lawyer and follow the right legal steps.

Contesting a Will

If your sibling is presenting the court with a will, you wold have to successfully contest the will and have it set aside by the court. Contesting a will is a legal process undertaken to challenge the validity of a deceased person’s will. In New York, as in most other states, there are specific grounds on which a will can be contested:

1. Formalities Not Followed: For a will to be valid, the people involved in its execution must follow formal requirements. New York is one of the states that has rigid formal requirements for executing wills. Failure to adhere to every single one of these requirements can lead to a will failure and a successful will contest. The formal requirement that fails the most? The will-maker not saying to the witnesses that the document is their will.

2. Forgery: If the will is a forgery, in whole or in part, then it fails and the will contest is a success. The most common forgery methods are to claim that a document is a person’s will when that person never singed the document, or replacing pages in a will.

3. Undue Influence: To prove undue influence, you would have to show that your sibling took advantage of someone (typically one of your parents) and manipulated them into making a will for his benefit. Proving undue influence is not easy, because it often occurs behind closed doors. For that reason, you will have to rely on circumstantial evidence.

4. Lack of Mental Capacity: To contest a will based on this ground, you have to prove that the deceased (probably one of your parents) did not understand the nature of their assets, their relatives, and friends, or what was in the will at the time of its execution. Medical records showing conditions such as dementia disorders or mental illness are used as evidence of lack of mental capacity.

5. Fraud: Contesting a will based on fraud involves showing that your sibling knowingly misled the deceased into signing the will, either by misrepresenting the contents of the will or by providing false information about you.

6. Duress: To contest a will based on duress, you have to prove that your sibling forced the decedent to make a will.

7. Revocation: A will can be revoked by destroying it or making a new will. If the original will cannot be found, the court presumes that it have been revoked, unless proven otherwise.

To learn more about contesting a will, read our guide to will contests.

Contesting a Trust

To recover inheritance your sibling took through a trust, you would have to successfully contest the trust. Contesting a trust is similar to contesting a will. To contest a trust, you would have to prove that the person who made the trust did not have the mental capacity to make the trust and was unduly influenced into making it. In some cases, you would also allege that the person making the trust was defrauded by your sibling into making it or was forced into making it. You can also try to prove that the trust is a forgery, or that it was not made correctly.

Undoing a Power of Attorney

If you are claiming that your sibling abused a financial power of attorney and committed such abuse either before or after the death of the account owner, then you can file a discovery or turnover (or a similar or equivalent) proceeding, requesting the court to direct your sibling to turn over the funds. Money in the bank account is easily traceable for as long as it is not laundered.

If you want to prove that your sibling used his power of attorney after your parent’s death, you would just have to show that the transaction done through a financial power of attorney and the death certificate proving the date of death of the account owner. Any transaction conducted after the death of the principal using the financial power of attorney is considered illegal.

Proving abuse of the financial power of attorney before the account owner’s death is a little bit more complex. You must show that the withdrawals made in the bank account were not made for the benefit of the principal or given as a gift by the principal to the agent.

To undo abuse of power of attorney while the person is still alive, you would have to bring a guardianship proceeding.

Recovering Property in a Joint Account

If you think that your sibling cheated you out of your inheritance through a joint account, you have three different pathways to recovery:

  • Prove that the person who actually put the money into the account was being unduly influenced to do so or did not have the capacity to sign the beneficiary designation
  • Prove that the account was solely for the convenience of the person who put the money into the account
  • Prove that the account was changed without authorization, either by computer or through a power of attorney

Banking law will apply in recovering this inheritance. Your lawyer will review signature cards and bank records to see whether these joint accounts are accounts for convenience.

Proving lack of capacity and being unduly influenced into changing the beneficiary designation are related. A combination of undue influence and fraud or misrepresentation, precipitated by the owner’s weakened mental state. This is usually proven by the discovery of the account owner’s medical records.

In some states such as New York, if the allegation of inheritance theft involves the account owner designating someone as a joint account owner, you may be able to invalidate this designation by showing that your sibling was included in the bank account for the original account owner’s convenience only. This is proven by showing that all withdrawals in the bank account during the lifetime of the account owner were made for the benefit only of the original account owner.

Money can be stolen by abusing a financial power of attorney, either before or after the account holder’s death. There is inheritance theft when undue influence is exerted upon the account holder to change the designated beneficiary prior to death.

Contesting a Deed

Real estate and vehicles can be stolen through the execution of deeds. The real estate owner could have been unduly influenced into deeding the property to your sibling. Generally, if the property, such as real estate, is transferable by deed, most deeds are invalidated by proving a combination of undue influence and fraud or misrepresentation. Undue influence occurs when the owner was coerced into executing the deed by the beneficiary. It normally happens when the owner is in a weakened state or physically reliant on the beneficiary for his daily activities. This is proven through the owner’s medical records, showing the medication the owner was taking and the owner’s health status at the time the deed was executed. When the owner is suffering from a mind-debilitating disease, is taking mind-altering medication, or is physically reliant on the beneficiary for his activities, this can bolster the allegation that the owner was unduly influenced into executing the deed of transfer.

Self-Dealing Actions When Your sibling is an Executor or a Trustee

There are three ways in which your sibling can cheat you out of your inheritance as an executor or a trustee:

  • Outright transferring estate property to themselves
  • Not making distributions to the other beneficiaries, only to themselves or family members aligned with them
  • Skimming off estate funds and charging their personal expenses to the estate

If you can prove that your sibling cheated you out of your inheritance, you can have the judge remove him from his role as an executor or trustee. You can also request that the court restrains your sibling from committing further acts, pending resolution of your petition. If the court finds that your sibling cheated you out of your inheritance, you can file a surcharge action, holding him liable for damages caused to the estate due to the inheritance theft. Depending on the state, your sibling’s violation of fiduciary duty may be penalized with punitive damages.

Theft of Personal Items

Personal items can be physically stolen before or after the owner’s death. This is particularly more difficult to prove since stolen personal property can easily and immediately be sold so that your sibling would not be caught with possession of it.It would be hard to prove that your sibling stole personal property, because control over personal property could give rise to the presumption that that person who controls it has ownership, unless the personal property is titled, such as an automobile or a valuable painting.

Remedies:

Civil or Criminal Proceeding

The most common way to recover an unfairly gained inheritance from your sibling is to file a civil case, but if you wish, you can also try to get the police to file a criminal case. You can click on the proceeding you are interested in it will take you right to the section that deals with it.

Recovering Stolen Inheritance Through Civil Court

Before filing a case against your sibling in civil court to reclaim stolen inheritance, consider the following:

  1. Strength of Evidence: How strong and convincing is your evidence?
  2. Asset Value: What’s the total worth of the stolen inheritance?
  3. Time and Cost: Evaluate the time you’ll spend and the legal fees and expenses you’ll incur.

By assessing these factors, you can make a well-informed decision on whether it’s worthwhile to pursue the recovery of the stolen inheritance.

Setting aside a document. Your attorney may request for the court to set aside a will, may request the annulment of the deed or the beneficiary designation on the ground of undue influence, may request for the reformation of the deed on the ground of mutual mistake, or may claim joint accounts for convenience in cases of investment and bank accounts. If you think that your sibling forged the will or exerted undue influence upon the testator to write a will giving substantially to them most of the testator’s property, you can file a will contest.

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.

Surcharge. Your lawyer can petition the court to surcharge your sibling for the amount he cheated you out of. If your sibling is the executor, then the court can surcharge his share of the estate, giving some or all of your sibling’s share to you and 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 your sibling to return property that he wrongfully transferred. In New York, if your sibling is the executor or administrator who has been stealing from the estate, you can initiate a reverse discovery and turnover proceeding. If you think that your sibling stole from the estate and you are the executor or administrator, you must file the discovery and turnover proceeding. If your executor or administrator refuses to file this discovery and turnover proceeding against your sibling, you may be able to compel the executor or administrator to file it by petitioning the court to remove him for failing to do his job.

Accounting. If your sibling is the executor or trustee, you can compel him to provide a formal accounting. Once your sibling provides the accounting, you will have a chance to object to the accounting. If the court finds that your sibling stole from the estate, the court will force your sibling to return the property. If your sibling is also a beneficiary, the court will deduct the money from your sibling’s share.

Discharge of executor. If your sibling is caught stealing and he is the estate is the executor or administrator, the judge of the probate court can discharge him from his 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.

Guardianship. If your parent’s other other relatives’ property is being stolen while they are still alive, thereby diminishing your inheritance, you can consider bringing a guardianship proceeding in order to stop your sibling from continuing to siphon money and to have your relative’s property be returned to them.

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. If your sibling is an executor or trustee and committed misconduct, the court can force him to waive his commission.

Attorneys’ fees. If your sibling is the executor or trustee, he will use estate funds for his defense. If the court finds that your sibling improperly took funds from the estate, the court can order him to reimburse the estate for their attorneys’ fees. In some rare cases, the court can even order your sibling to pay your attorneys’ fees.

Recovering  Stolen Inheritance Through Criminal Restitution

It’s not common for someone to press charges against their sibling. And the district attorney’s office does not like to prosecute cases that can be resolved in civil court. But it does happen from time to time.

The chance of getting a criminal prosecution depends on whether the district attorney’s office agrees to prosecute your case. They typically decline, saying it’s a civil matter. But under some circumstances, the DA’s office will take on a stolen inheritance case.

If your sibling took money or property that did not belong to him, he can be subject to criminal prosecution for theft from the estate, even if he is 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 judge and jury will find that there was no proof of theft beyond a reasonable doubt. But if the District Attorney’s office decides to bring charges, then the potential penalties can be significant even if the case does not go to trial.

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 cheating each one of his siblings out of a thousand dollars. If he withdraws a penny, most of that penny belongs to the other beneficiaries.

The Penal Law. The estate is the owner of the property. When an executor or anyone else is stealing from the estate, they commit 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 stealing from an estate. 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] 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 estate broker, financial advisor, caretakers and others.

What are the Red Flags?

There are some  potential red flags that point to your sibling possibly cheating you out of your fair share of your inheritance:

  • A recent and unexplained increase in your sibling’s spending
  • Your sibling buying nicer and more expensive 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 that point in that direction.

Taking the Initial Step: Trying to Resolve the Matter Personally

Initially, you might consider resolving the matter personally before seeking legal assistance. A simple request to your sibling to return the inheritance to the estate could potentially do the trick.

Perhaps, he only intended to keep the property if he could do so undetected. Once caught, he may choose to avoid the stress of potential legal proceedings and return what he has taken without further fuss. Feel free to pause your reading here and reach out to him.

If your initiative yields a positive result, congratulations!

However, if your personal appeal is unsuccessful, read on. The next logical step might be to take legal action against your sibling.

Once you engage an attorney, they’ll need all the details of the inheritance theft. Your attorney will meticulously compile the information and present it to the court in the form of a petition or complaint.

It’s not unheard of for a sibling to act dishonestly when it comes to inheritance. The allure of easy wealth can prove too strong for some to resist. Siblings may craft intricate justifications and employ numerous tactics to hide their actions. In cases of strained relationships or significant geographical separation, siblings might even attempt to deny others their rightful share of the inheritance. An estate attorney may be able to help you in reclaiming the inheritance that is rightfully yours.

Whether you think that your sibling is cheating you out of your inheritance, or if you are a sibling who feels like your siblings are falsely accusing you, 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 send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774 to discuss your options.

[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 Much Time is Reasonable?

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.

Nieces and Nephews Inheritance Law in Estate of Aunt or Uncle

Nieces and Nephews Inheritance Law in Estate of Aunt or Uncle

Nieces and nephews inheritance laws endow you with certain rights to your aunt or uncle’s inheritance. However, your rights are of lower priority than those of your aunt or uncle’s more immediate family members. As set forth in the laws of the state of New York, you have no rights to your aunt or uncle’s inheritance if they had a living spouse, descendants or parents at the time of their death. Even if you are the closest living relative, you may also have very limited rights if your aunt or uncle left you out of their will.

If you have questions about nieces and nephews inheritance law, you can send Whether you are a beneficiary who thinks that the trustee is about to sell the house to himself, or if you are a trustee and you feel that you are being falsely accused of selling the house to yourself for less than fair market value, we at the Law Offices of Albert Goodwin are here for you. You can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

Will I inherit if my aunt or uncle did not have a will?

If your aunt or uncle did not have a will, then you will inherit only if you are “the closest living relative” – only if your aunt or uncle died with no living spouse, descendants (children, grandchildren, great-grandchildren etc.) and parents.

Do I have to be notified if my aunt or uncle died?

If your aunt or uncle had a will, then nieces and nephew inheritance laws state that you will have the right to be notified of the will and the hearing date when the will is presented before the court.

What can I do if I am not named in my aunt or uncle’s will?

If you were not named in your aunt or uncle’s will, then you have the right to contest the will. You can win a will contest if you can prove that your aunt or uncle either did not have the mental capacity to make a will, was unduly influenced into making the will or the will was not made correctly.

Will I be in charge of my aunt or uncle’s estate?

If you are the closest living relative (your aunt or uncle does not have a living spouse, descendants or parents) or you are named as the executor in your aunt or uncle’s will, then you can be named the executor or administrator of their estate.

Can I inherit from my aunt or uncle if they were not married and the children are not theirs?

Children are presumed to be biological children if they were born during the marriage or have your aunt or uncle’s name on their birth certificate. Adopted children of your aunt or uncle are considered their children. Step-children or foster children are not considered their children.

Can I inherit from my aunt or uncle if their marriage was invalid?

A legal marriage is assumed to be valid unless you can prove otherwise, even your aunt or uncle was separate from their spouse or was in the process of divorce. But if you can prove to the court that your aunt or uncle’s spouse abandoned them, then you will be able to set aside the spouse’s share and will be able to inherit from your aunt or uncle. To be valid for inheritance purposes, the marriage has to be a legal marriage. Common-law marriage is not valid in New York, but may be valid in a different state.

What should I do if I need an estate and probate lawyer for my aunt or uncle’s estate?

You can contact the Law Offices of Albert Goodwin, an attorney familiar with nieces and nephews inheritance laws. We at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

Inheritance Rights of Nieces and Nephews

photos of generic nieces and nephews to show Inheritance Rights of Nieces and Nephews

As a niece or nephew, there are two possible ways you can inherit from your aunt or uncle.  Either they named you in their will, or you are the most direct relative they had living at the time they died. In many cases, you would have to share the inheritance with other people, usually your siblings or cousins.

So if they did not have a will and they have living relatives who are more directly related than you, then those relatives will have full rights to your aunt’s and uncle’s inheritance, and you will be excluded. Those more directly related relatives are a surviving spouse, children, or parents, who were alive at the time of your aunts or uncle’s passing. You would not be entitled to their inheritance, because the more direct relatives take preference.

If your aunt or uncle had a will and did not include you in it, then you would not be entitled to their estate, even if you are the closest living relative, unless you can find a way to prevent that will from being approved by the probate court.

In this short guide, we will provide answers to the most frequently asked questions about inheritance rights of nieces and nephews in the state of New York.

If you need a consultation with an attorney, you can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

Do I have the right to inherit if my aunt or uncle did not have a will?

If your aunt or uncle did not have a will, then you will inherit only if you are “the closest living relative” – only if your aunt or uncle died with no living spouse, descendants (children, grandchildren, great-grandchildren etc.) and parents.

Do I have the right to be notified if my aunt or uncle died?

If your aunt or uncle had a will, then you will have the right to be notified of the will and the hearing date when the will is presented before the court.

What rights do I have if I am not named in my aunt or uncle’s will?

If you were not named in your aunt or uncle’s will, then you have the right to contest the will. You can win a will contest if you can prove that your aunt or uncle either did not have the mental capacity to make a will, was unduly influenced into making the will or the will was not made correctly.

Do step-nieces and step-nephews have the right to inherit?

Step-nieces and step-nephewes do not have the right to inherit. Only if they were adopted by the aunt and uncle’s aunt or uncle, in which case they would be considered nieces and nephews.

Do all nieces and nephews have the right to inherit equally?

All nieces and nephews from the same aunt or uncle have the right inherit equally unless stated otherwise in the will of the aunt or uncle who died, but you can only share the inheritance share of your deceased parent, so you may inherit unequally with your cousins.

Do I have the right to be in charge of my aunt or uncle’s estate?

If you are the closest living relative (your aunt or uncle does not have a living spouse, descendants or parents) or you are named as the executor in your aunt or uncle’s will, then you can have the right to be named the executor or administrator of their estate.

Do I have the right to inherit from my aunt or uncle if they were not married and the children are not theirs?

Children are presumed to be biological children if they were born during the marriage or have your aunt or uncle’s name on their birth certificate. Adopted children of your aunt or uncle are considered their children. Step-children or foster children are not considered their children.

Do I have the right to inherit from my aunt or uncle if their marriage was invalid?

A legal marriage is assumed to be valid unless you can prove otherwise, even your aunt or uncle was separate from their spouse or was in the process of divorce. But if you can prove to the court that your aunt or uncle’s spouse abandoned them, then you will have the right to set aside the spouse’s share and will be able to inherit from your aunt or uncle. To be valid for inheritance purposes, the marriage has to be a legal marriage. Common-law marriage is not valid in New York, but may be valid in a different state.

What should I do if I need an estate and probate lawyer for my aunt or uncle’s estate?

You can contact the Law Offices of Albert Goodwin, a law firm familiar with inheritance rights of nieces and nephews. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

Contesting a Transfer at Death. Pro Tips and Winning Strategies.

Contesting a transfer at death

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

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.

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.

If you are dealing with a contested transfer on death, we at the Law Offices of Albert Goodwin are here for you. You can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

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

When we contest a transfer at death, we may 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 or defending a transfer at death of real estate, bank accounts or insurance policies, and wish to speak with an attorney, we at the Law Offices of Albert Goodwin are here for you. You can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

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).

The Penalties for Looting an Estate

estate thief being caught with a net

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.

Penalty by type of looting

Looting an estate can involve undue influence, fraud, forgery or conversion. Undue influence is not a crime and the penalty is only civil. Fraud, forgery and conversion are crimes and the penalty can be civil as well as criminal. The penalty will constitute larceny and the felony class and sentencing will be as discussed in the previous section.

Undue Influence means coercing someone to make a will or transfer property. The penalty for undue influence typically does not rise to the level of criminal prosecution for looting an estate, so the penalty can only be civil.

Fraud can occur in two ways: (a) fraud by way of execution; or (b) fraud by inducement. In fraud by execution, the decedent does not know that the document he is signing is his will. In fraud by inducement, a beneficiary makes substantial misrepresentations to the testator, making the testator change the disposition of his property in a manner different than he would have, if not for that statement. To assert fraud, a false statement must knowingly be made, and the false statement caused the creation of that will or its provision. Fraud, if proven, can be considered a crime and would be subject to a criminal penalty.

Forgery in an estate occurs when someone decides that they want to receive monetary benefit or control of another person’s assets without the permission of the person who owns the assets. Acts of forgery may be committed by strangers, family members, a caregiver or a fiduciary and may involve forging someone’s name on a check, real estate transfer deed, will, power of attorney or other legal instruments. In fact, many times the crime is committed by a close family member out of fear of loss of inheritance or greed because they want a larger share of the inheritance than their loved one has decided to give them. Forgery would be subject to both a civil and criminal penalty.

Conversion is physically looting property of the estate. For example, transferring money from the estate’s account or taking property from the residence of the decedent. Conversion would be subject to both a civil and criminal penalty.

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