Selling Property in an Irrevocable Trust in New York City

a hand holding a set of keys selling property in an irrevocable trust

When selling property in an irrevocable trust, look at the trust document first. If the trust document allows the trustee to sell the house, then the trustee is allowed to do so. But carefully look at the trust language for what the trustee is allowed to do with the funds. The trustee is not allowed to sell the house to himself or for below market value, unless the trust expressly states otherwise.

When selling property in an irrevocable trust, can I sell it to myself? Only for fair market value. The house does not belong to the trustee – he is just managing it. What do we call it when a manager steals property he is managing? That’s right, it’s called embezzlement. Or more simply, stealing.

Let’s say a trust contains a property that is worth $1 million, with the trustee selling property in an irrevocable trust to himself as an individual for $200,000. This gives him the opportunity to “flip” the house on the market and walk away with $800,000 or live in a $1 million house having only paid $200,000. Even if the trustee is one of the beneficiaries, he is responsible to manage the trust for everyone’s benefit, not just his own.

The trust belongs to all the beneficiaries. If the person selling property in an irrevocable trust uses the trust’s money for his own needs in any way or transfers trust money to himself, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he takes four thousand dollars, he is not taking 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.

What can happen if the person selling property in an irrevocable trust neglects good advice and sells the house to himself for less than fair market value? Nothing good. The trustee can be removed by the judge on the case. The court will force the trustee to return the house to the trust or pay restitution to the beneficiaries of the trust. 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 that holds the house. 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.

A person selling property in an irrevocable trust cannot sell the house to himself because the house belongs to someone else. Unless he pays full price for it. As explained above, doing so is stealing and can lead to an array of legal woes.

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, 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]

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 is the owner of the house. If the person selling property in an irrevocable trust transfers the house to himself, even if he’s paying something for it, 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]

For a person selling property in an irrevocable trust, having your New York trust lawyer get a release form beneficiaries is especially crucial when the transaction in question involves the trustee personally, such as when the transaction is between the trust and the trustee or the trustee derives some sort of benefit from the transaction. If the trustee is transferring property to himself, even if for fair market value, the trustee 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 property to yourself would trigger feelings of inequity in beneficiaries, so it is important to communicate with them, explain that they are still getting a fair share of the trust, 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 the trustee fulfilled his responsibilities to the beneficiaries.

The most crucial release that the person selling property in an irrevocable trust can get from the beneficiaries is at the end of the trust. Once the assets are collected or sold and the debts are paid out, and it’s time for the trustee of a New York trust to disburse the funds to the beneficiaries. But before the trustee does that, 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 the trustee. The best release comes with an informal accounting, which provides a summary of what property went into the trusts, what the expenses were, and what is the share of inheritance for each beneficiary.

To sum up, trustees should not sell the house to themselves, unless it is for fair market value and with either signed consent from each and every beneficiary or an order of the court authorizing the trustee to sell the house to himself.

The trustee should place the proceeds of the sale of the house into the trust account.

The trustee can only use trust funds to pay the legitimate expenses of the trust, taxes and legal fees.

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 [email protected] or call us 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

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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