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How to Recover Stolen Inheritance from the Thief. Practical Tips and Remedies.

a cartoon of a butterfly net used to catch a thief to recover stolen inheritance
The first thing you can try to recover stolen inheritance is to request the alleged thief to restore or return it back to the estate. And if that does not work, you can file a lawsuit against them.

You can start by asking the person to return the money or property. It may or may not work, but it’s easy and free and doesn’t cost you anything. It could be that their plan was to only take the property if they could get away with it. Now that they are discovered, they may decide to cut their losses and not have to deal with a civil lawsuit or even criminal prosecution, and they might just return the money or property in question.

As a matter of fact, you can put this article on pause until you ask them to return the stolen inheritance.

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

If that did not work, you can keep on reading. Your next step would probably be to sue them in court. If you need an attorney to recover stolen inheritance, we at the Law Offices of Albert Goodwin are here for you. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

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, motion, complaint, notice of objection or a similar legal pleading.

In order to put together a plan how to recover the stolen inheritance from the thief, you and your attorney would first have to figure out the who, when, what and how.

Who?

The most important question about stolen inheritance is who stole the inheritance.

Inheritance can be stolen by an executor, administrator, or a beneficiary, such as a sibling. It can also be stolen by someone who is not a family member, or a person completely unrelated to the estate.

When we hear complaints about stolen inheritance, it is usually stolen by someone who was close to the person who died:

  • family member – son, daughter, brother, sister, niece, nephew or cousin
  • friend, possibly someone who only pretended to be a friend
  • caretaker such as a home health aide or nurse
  • financial professional such as an attorney, accountant or financial advisor
  • a third-party¬†stranger

Determining who stole the inheritance is the first step in determining what kind of proceeding your lawyer would initiate.

When?

You would then have to figure out when they stole the inheritance.

Inheritance stolen before death. This usually occurs when a caregiver, child, friend, neighbor, new spouse, or advisor use their personal relationship with the person who died to obtain or take money from him, to the detriment of his loved ones.

Inheritance stolen after death. When it is the executor or administrator who is stealing from the estate, an interested person can petition the court to suspend and/or remove the executor or administrator. However, if you want to know how to recover stolen inheritance, you need to be aware of the fact that evidence of fraudulent activity is required. Together with an attorney, there may be a need to hire a forensic accountant to analyze the accounting documents to see if there is evidence of fraud.

Inheritance stolen after death but before inventory. Most inheritance theft cases occur before inventory. When someone dies, family members rummage through the belongings of the decedent to get anything of value, even before an executor is appointed to conduct inventory. By the time letters testamentary have been issued, most personal assets, such as expensive jewelry, artwork, antiques, cash hidden in the home, classic cars, stock certificates, and bonds or notes payable to bearer, have already been pillaged. For this reason, the executor may fail to include certain assets in the inventory. If you suspect that a family member has stolen from the decedent’s belongings prior to inventory and want to know how to recover stolen inheritance, it is important to conduct an extensive investigation to obtain evidence prior to filing a suit to recover the missing items.

What?

You would then have to figure out what they stole. There is a number of different types of assets that could be stolen from an estate.

Bank Accounts. If a relative stole from the decedent’s financial accounts by asserting ownership over joint accounts, 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.

Real Property. If real property was stolen through insidious means, your lawyer will use real property and contract law to determine whether the deeds can be annulled.

Personal Property. Stolen personal property is a little bit more complicated to prove because control over personal property usually gives 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.

If you suspect that your inheritance has been stolen, immediately conduct your own due diligence and consult with an inheritance recovery attorney. Some places to start the investigation are:

  • Tax records to see whether title to property has changed via deed or sale, and whether any liens have been placed on real property
  • Bank, brokerage, and retirement account statements to see if there have been unusually large withdrawals
  • Changes in beneficiary designations on insurance policies, annuities, brokerage accounts, and retirement accounts, to see if there are recent replacements made
  • Bank accounts to see if another joint account holder has been added
  • Receipts and invoices for legal expenses, notary fees, or other estate planning services
  • Federal and state tax returns to determine if there had been gifts to others
  • Examination of personal property in drawers, closets, and safety deposit boxes to see if jewelry, coins, bonds, cash, and other collectibles are missing.

How?

You would also have to figure out how the thief stole the inheritance.

Usually, the thief would gain the trust of a vulnerable senior and use undue influence, lies, threats, manipulation, isolation, or forgery to obtain gifts or just steal from them. As such, stealing can be done both before or after death. It could be as simple as getting jewelry and other valuable personal property from the belongings of the decedent, or the administrator or executor over-charging the estate for fees or expenses related to administration, to something more complex, such as an adult child who is the primary caregiver of his parent using undue influence to gain control of real property that should have been divided among the parent’s children in equal shares.

Some examples of stealing inheritance while the decedent is still alive are: the transfer of real property to another with the exertion of undue influence upon the decedent, designation of a third party as beneficiary to insurance policies, investment accounts, and bank accounts, or the designation in a deed that property is held under joint tenancy with rights of survivorship. The unique circumstances of each case will dictate the legal strategy of the lawyer.

How the inheritance was stolen is important in determining the type of proceeding to be filed.

Remedies: what you can do to recover stolen inheritance

When deciding whether to file a petition to recover stolen inheritance or not, you must evaluate the strength of the evidence on hand, the value of the assets, and the time to be wasted and the legal costs spent in recovering it. This will provide you with an informed decision on whether recovering stolen inheritance is worth pursuing or not.

Recover stolen inheritance in civil court

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 your inheritance was stolen by a beneficiary who 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 contest the will if you are the testator’s nearest relative.

Surcharge. Beneficiaries will ask the court to surcharge the executor who they are claiming took more than they are entitled to. If the executor is one of the beneficiaries, then the court can surcharge the executor’s share of the estate, giving some or all of the executor’s share to the other beneficiaries. Surcharge here means¬†charging the person who stole the money with having to return the money. It’s a legal term, used a little differently than the common way we use the word surcharge.

Turnover. Beneficiaries can bring a proceeding for Discovery and Turnover. If the court grants the turnover, then it will force the executor to return property that he wrongfully transferred. In New York, if it is the executor or administrator who has been stealing from the estate, you can initiate a reverse discovery and turnover proceeding. If it is a third party who has stolen from the estate, the executor or administrator must file the discovery and turnover proceeding. If your executor or administrator refuses to file this discovery and turnover proceeding, 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.

Discharge of executor. If the person caught stealing from the estate is the executor or administrator, the judge of the Surrogate’s Court can discharge them from their position, taking away their power to manage the estate. The judge can discharge and remove the executor “by reason of his having wasted or improperly applied the assets of the estate.”[1] The court can appoint someone else as the executor instead, typically one of the beneficiaries who brought the proceeding to remove the misbehaving executor.

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.

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‚Äô attorneys‚Äô fees.

Recover Stolen Inheritance Through Criminal Restitution

It is not common for an executor of an estate to be criminally prosecuted, but it does happen. It all 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.

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 stealing from the other beneficiaries of the estate. Everyone has their side of the story, and it could be that the beneficiaries’ allegations of theft are unfounded. But if the District Attorney’s office decides to bring charges, then the potential penalties can be significant.

The 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‚Äôs Penal Law (the Criminal Law) states that ‚Äúa 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.‚ÄĚ [2] New York Penal Law continues to say that ‚ÄúLarceny 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.‚ÄĚ [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.

How you can prevent estate theft

To prevent theft from an estate, you need to consult with an estate planning or probate attorney who can help and advise on how to proceed. Some actions you may consider taking are:

  • Get more involved with the parent
  • Be vigilant and be on the lookout for anyone who is trying to take undue advantage of their old age
  • Speak to your parent about issuing a financial power of attorney, so that you can help them manage their finances
  • Learn about guardianship options and decide if a guardianship makes sense in order to help you manage your parent‚Äôs affairs

If you want to learn more about how to recover stolen inheritance, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.


[1] 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