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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 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.

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, at (212) 233-1233 or (718) 509-9774.

Inheritance Rights of Nieces and Nephews

Inheritance rights of nieces and nephews endow you with certain rights to your brother’s or sister’s inheritance. However, your rights are 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.

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, an attorney familiar with inheritance rights of nieces and nephews, at (212) 233-1233 or (718) 509-9774.

Uncle Inheritance Laws: an Overview

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

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

Do I have to be notified if my uncle died? If your uncle had a will, then uncle 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 uncle’s will? If you were not named in your uncle’s will, then you have the right to contest the will. You can win a will contest if you can prove that your 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.

Can I inherit from step-uncle? You cannot inherit from a step-uncle. Only if you were adopted by the uncle’s sibling, in which case they would be considered an uncle.

Do all nieces and nephews inherit equally? According to uncle inheritance laws, nieces and nephews inherit by sharing the inheritance share of the uncle’s siblings.

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

Can I inherit from my uncle if his marriage was invalid? A legal marriage is assumed to be valid unless you can prove otherwise, even your uncle was separate from his spouse or was in the process of divorce. But if you can prove to the court that your 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 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 uncle’s estate? You can contact the Law Offices of Albert Goodwin, an attorney familiar with uncle inheritance laws, at (212) 233-1233 or (718) 509-9774.

Aunt Inheritance Laws: An Overview

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

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

Do I have to be notified if my aunt died? If your aunt had a will, then aunt 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’s will? If you were not named in your aunt’s will, then you have the right to contest the will. You can win a will contest if you can prove that your aunt 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.

Can I inherit from step-aunt? You cannot inherit from a step-aunt. Only if you were adopted by the aunt’s sibling, in which case they would be considered an aunt.

Do all nieces and nephews inherit equally? According to aunt inheritance laws, nieces and nephews inherit by sharing the inheritance share of the aunt’s siblings.

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

Can I inherit from my aunt if her marriage was invalid? A legal marriage is assumed to be valid unless you can prove otherwise, even your aunt was separate from her spouse or was in the process of divorce. But if you can prove to the court that your aunt’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. 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’s estate? You can contact the Law Offices of Albert Goodwin, an attorney familiar with aunt inheritance laws, at (212) 233-1233 or (718) 509-9774.

Inheritance Rights of Siblings

inheritance rights of siblings
Inheritance rights of siblings endow you with certain rights to your brother’s or sister’s inheritance. However,  your rights are lower priority than those of your sibling’s more immediate family members. As set forth in the laws of the state of New York, you have no rights to your sibling’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 sibling left you out of their will.

Do I have the right to inherit if my sibling did not have a will? If your sibling did not have a will, then you will inherit only if you are “the closest living relative” – only if your sibling died with no living spouse, descendants (children, grandchildren, great-grandchildren etc.) and parents.

Do I have the right to be notified if my sibling died? If your sibling 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 sibling’s will? If you were not named in your sibling’s will, then you have the right to contest the will. You can win a will contest if you can prove that your sibling 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 half-siblings have the right to inherit? Half-siblings have the right to inherit equally with full siblings. This is only true in some states, New York being one of them.

Do step-siblings have the right to inherit? Step-siblings do not have the right to inherit. Only if they were adopted by the sibling’s parents, in which case they would be considered siblings.

Do all siblings have the right to inherit equally? All siblings have the right inherit equally unless stated otherwise in the will of the sibling who died.

Do I have the right to be in charge of my sibling’s estate? If you are the closest living relative (your sibling does not have a living spouse, descendants or parents) or you are named as the executor in your sibling’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 sibling 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 sibling’s name on their birth certificate. Adopted children of your sibling are considered their children. Step-children or foster children are not considered their children.

Do I have the right to inherit from my sibling if their marriage was invalid? A legal marriage is assumed to be valid unless you can prove otherwise, even your sibling was separate from their spouse or was in the process of divorce. But if you can prove to the court that your sibling’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 sibling. 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 sibling’s estate? You can contact the Law Offices of Albert Goodwin, an attorney familiar with inheritance rights of siblings, at (212) 233-1233 or (718) 509-9774.

Sister Inheritance Laws: an Overview

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

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

Do I have to be notified if my sister died? If your sister had a will, then sister 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 sister’s will? If you were not named in your sister’s will, then you have the right to contest the will. You can win a will contest if you can prove that your sister 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.

Can half-sisters inherit? According to the laws of the state of New York, half-sisters inherit equally with full sisters. This is only true in some states, New York being one of them.

Can step-sisters inherit? Step-sisters do not inherit. Only if they were adopted by the sister’s parents, in which case they would be considered sisters.

Do all sisters inherit equally? According to sister inheritance laws, all sisters inherit equally unless stated otherwise in the will of the sister who died.

Will I be in charge of my sister’s estate? If you are the closest living relative (your sister does not have a living spouse, descendants or parents) or you are named as the executor in your sister’s will, then you can be named the executor or administrator of her estate.

Can I inherit from my sister if her marriage was invalid? A legal marriage is assumed to be valid unless you can prove otherwise, even your sister was separate from her spouse or was in the process of divorce. But if you can prove to the court that your sister’s spouse abandoned them, then you will be able to set aside the spouse’s share and will be able to inherit from your sister. 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 sister’s estate? You can contact the Law Offices of Albert Goodwin, an attorney familiar with sister inheritance laws, at (212) 233-1233 or (718) 509-9774.

Brother Inheritance Laws: An Overview

brother inheritance laws

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

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

Do I have to be notified if my brother died? If your brother had a will, then brother 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 brother’s will? If you were not named in your brother’s will, then you have the right to contest the will. You can win a will contest if you can prove that your brother 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.

Can half-brothers inherit? According to the laws of the state of New York, half-brothers inherit equally with full brothers. This is only true in some states, New York being one of them.

Can step-brothers inherit? Step-brothers do not inherit. Only if they were adopted by the brother’s parents, in which case they would be considered brothers.

Do all brothers inherit equally? According to brother inheritance laws, all brothers inherit equally unless stated otherwise in the will of the brother who died.

Will I be in charge of my brother’s estate? If you are the closest living relative (your brother does not have a living spouse, descendants or parents) or you are named as the executor in your brother’s will, then you can be named the executor or administrator of his estate.

Can I inherit from my brother if they were not married and the children are not his? Children are presumed to be biological children if they were born during the marriage or have your brother’s name on their birth certificate. Adopted children of your brother are considered his children. Step-children or foster children are not considered his children.

Can I inherit from my brother if his marriage was invalid? A legal marriage is assumed to be valid unless you can prove otherwise, even your brother was separate from his spouse or was in the process of divorce. But if you can prove to the court that your brother’s spouse abandoned them, then you will be able to set aside the spouse’s share and will be able to inherit from your brother. 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 brother’s estate? You can contact the Law Offices of Albert Goodwin, an attorney familiar with brother inheritance laws, at (212) 233-1233 or (718) 509-9774.

Sibling Inheritance Laws: An Overview

sibling inheritance laws
Sibling inheritance laws endow you with certain rights to your sibling’s inheritance. However,  your rights are lower priority than those of your sibling’s more immediate family members. As set forth in the laws of the state of New York, you have no rights to your sibling’s inheritance if your sibling 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 sibling left you out of their will.

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

Do I have to be notified if my sibling died? If your sibling had a will, then sibling 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 sibling’s will? If you were not named in your sibling’s will, then you have the right to contest the will. You can win a will contest if you can prove that your sibling 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.

Can half-siblings inherit? According to the laws of the state of New York, half-siblings inherit equally with full siblings. This is only true in some states, New York being one of them.

Can step-siblings inherit? Step-siblings do not inherit. Only if they were adopted by the sibling’s parents, in which case they would be considered siblings.

Do all siblings inherit equally? According to sibling inheritance laws, all siblings inherit equally unless stated otherwise in the will of the sibling who died.

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

Can I inherit from my sibling 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 sibling’s name on their birth certificate. Adopted children of your sibling are considered their children. Step-children or foster children are not considered their children.

Can I inherit from my sibling if their marriage was invalid? A legal marriage is assumed to be valid unless you can prove otherwise, even your sibling was separate from their spouse or was in the process of divorce. But if you can prove to the court that your sibling’s spouse abandoned them, then you will be able to set aside the spouse’s share and will be able to inherit from your sibling. 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 sibling’s estate? You can contact the Law Offices of Albert Goodwin, an attorney familiar with sibling inheritance laws, at (212) 233-1233 or (718) 509-9774.

Can One Heir Sell Property

Can one heir sell property of the estate

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

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

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

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

Having your New York estate lawyer get a release form beneficiaries is especially crucial when the transaction in question involves the one heir personally, such as when the transaction is between the estate and the one heir or the one heir derives some sort of benefit from the transaction. For example, if the one heir is transferring a share of the decedent’s business, house, or other property to themselves, they should obtain a written release from the beneficiaries, or at least get them to approve it in writing, in order to avoid the possibility of being sued. Transferring assets to yourself often triggers feelings of inequity in beneficiaries, so it is important to communicate with them, explain that they are still getting a fair share of the estate, and that they are actually getting more money than they would have if not for you buying them out because of cost savings on transaction costs such as paying a broker. It is important that there is a feeling that one heir fulfilled his responsibilities to the beneficiaries.

The most crucial release that the one heir can get from the beneficiaries is at the end of the estate. Once the assets are collected or sold and the debts are paid out, and it’s time for them to disburse the funds to the beneficiaries. But before that’s done, it is important to get the release from the beneficiaries that states that they are satisfied with what they are getting and are never going to sue one heir. The best release comes with an informal accounting, which provides a summary of what property went into the estates, what the expenses were, and what is the share of inheritance for each beneficiary.

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

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

Assets That May Need to Be Sold

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

Assets that may need to be sold are as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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[1] NY EPTL § 11-1.1

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

[3] NY EPTL § 11-1.6

[4] NY PEN § 155.05

[5] NY PEN § 155.05

[6] NY EPTL § 11-1.3

A Trustee is Not Allowed to Borrow Funds From a Trust Account

Can a Trustee borrow money from the trust account? No. Why not? Because he is the one managing the money. So if he takes money from the account, it’s presumed to be embezzlement, which is simply known as stealing.

But how about if a trustee is also a beneficiary? Don’t some of the money in the trust also belong to him? For example, a man left a trust for his four children, and one of the children is a trustee. Can the trustee-child borrow money from the trust and say that he is just borrowing his own money? The answer to that is absolutely not. Even though the trustee is one of the beneficiaries of the trust, at the end of the day the trust is not his. The trust belongs to all the beneficiaries. So if a trustee borrows money, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he borrows four thousand dollars, he is not borrowing four thousand dollars of his own money. He is stealing a thousand dollars from each of his siblings. If he takes a penny, most of that penny belongs to the other beneficiaries of the trust.

What can happen if a trustee neglects good advice and does borrow money from the trust account? Nothing good. The trustee can be removed by the court. The court will force the trustee to return the money. The court might order the trustee to pay for his own attorneys’ fees as opposed to using trust funds to pay for his attorney’s fees. The judge may even order the trustee to pay the beneficiaries’ attorneys’ fees. What is scarier is that the trustee can even be criminally prosecuted for stealing. That’s right, a criminal prosecution even if the trustee is one of the beneficiaries of the trust and even if the amount he took is less than his stake in the trust account and intended to return the funds. The judge can refer the case to the District Attorney’s office, which has the power to prosecute the case in criminal court.

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

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

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

The trust as an entity is the owner of the funds. If a trustee borrows money from the trust, he commits larceny.

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

To sum up, trustees should keep the trust funds where they belong. In the trust account. Whenever they receive any funds relating to the trust in any way, those funds should be deposited into the trust account and not taken out for any reason without either signed consent from each and every beneficiary or an order of the court authorizing the executor to disburse the funds.

The trustee should place all trust funds into the trust account

Whether you are a beneficiary who thinks that the trustee is borrowing money from the trust, or if you are a trustee and you feel that you are being falsely accused of borrowing money from the trust and not returning it, you can speak with New York trust attorney Albert Goodwin, Esq. He can be reached at (212) 233-1233.

[1] NY EPTL § 11-1.1

[2] NY EPTL § 11-1.1

[3] NY EPTL § 11-1.6

[4] NY PEN § 155.05

[5] NY PEN § 155.05