My Brother Cheated Me Out of My Inheritance in New York City

a cartoon of a butterfly net used to catch a thief, to show my brother cheated me out of my inheritance

If your brother cheated you out of your inheritance in New York, you can call an attorney to explore your options. We typically recommend filing a civil lawsuit for the best chance of recovering at least some of the inheritance.

Contesting a Will

If your brother 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.

To contest a will, it’s not enough to disagree with it. One would have to establish one of the following grounds:

  1. Technical Failure. There were technical errors in how the will was made.
  2. Pressure and Manipulation. Someone pressured and manipulated the person into making the will.
  3. Diminished Mental Capacity. The person suffered from cognitive decline that interfered with his ability to understand the will.
  4. Forgery. The will is a fake.
  5. Fraud. The person made the will because someone has been lying to him.

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

Contesting a Trust

To recover inheritance your brother 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 brother 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 brother 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 brother 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 brother 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 brother cheated you out of your inheritance through a joint account, you have three different pathways to recovery:

  1. 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
  2. Prove that the account was solely for the convenience of the person who put the money into the account
  3. 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 brother 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 brother. 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 Brother is an Executor or a Trustee

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

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

If you can prove that your brother 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 brother from committing further acts, pending resolution of your petition. If the court finds that your brother 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 brother’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 brother would not be caught with possession of it.It would be hard to prove that your brother 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.


Civil or Criminal Proceeding

The most common way to recover an unfairly gained inheritance from your brother 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 brother 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 brother 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 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.

Surcharge. Your lawyer can petition the court to surcharge your brother for the amount he cheated you out of. If your brother is the executor, then the court can surcharge his share of the estate, giving some or all of your brother’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 brother to return property that he wrongfully transferred. In New York, if your brother 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 brother 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 brother, 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 brother is the executor or trustee, you can compel him to provide a formal accounting. Once your brother provides the accounting, you will have a chance to object to the accounting. If the court finds that your brother stole from the estate, the court will force your brother to return the property. If your brother is also a beneficiary, the court will deduct the money from your brother’s share.

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

Attorneys’ fees. If your brother is the executor or trustee, he will use estate funds for his defense. If the court finds that your brother 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 brother to pay your attorneys’ fees.

Recovering  Stolen Inheritance Through Criminal Restitution

It’s not common for someone to press charges against their brother. 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 brother 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 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 cheating each one of his brothers 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 brother possibly cheating you out of your fair share of your inheritance:

  • A recent and unexplained increase in your brother’s spending
  • Your brother 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 brother 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 brother 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 brother.

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 brother is cheating you out of your inheritance, or if you are a brother 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 City, Brooklyn, NY and Queens, NY. You can send us an email at [email protected] or call us at 212-233-1233 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

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001

Tel. 212-233-1233

[email protected]

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