When an executor for a will is appointed, he agrees to act in the best interest of the estate and to obey the deceased's wishes for her beneficiaries. Not every executor is honorable, however, and beneficiaries should receive regular updates that document what he's doing. If beneficiaries become convinced the executor is stealing from the estate, they need to act quickly to preserve their inheritance.
The longer you wait to take action against a thieving executor, the less likely you'll be able to recover stolen funds or possessions. You can start by confronting the executor to demand an explanation for questionable transactions or the sudden disappearance of funds. Be prepared to escalate quickly, however, as this confrontation may just alert the executor that he needs to accelerate his efforts to siphon off the money. Beneficiaries have the right to file suit against an executor based on their claims to the funds and property in the estate, and delays can prove costly. Filing a civil lawsuit may not have much of a practical effect if the money is already gone, even if you win the case.
Request an Injunction
The sooner you can shut down the trustee's ability to steal assets, the more of the estate you'll likely be able to preserve. While a lawsuit can take a long time to get through the system, you should be able to appear before the court to ask for an injunction quickly. This limits the damage that can be done while the case is being decided. Among your options is to ask to get the trustee removed, to stop the trustee from taking any more assets from the estate and to prohibit the use of funds already stolen.
In addition to stopping the executor of the will from accessing the estate's assets, you also can ask the court for restrictions against the account itself. Ask the court to order the financial institution holding the trust's assets to restrict the account and prohibit funds from being withdrawn without a court order. As an alternative, the trustee can be ordered to place the funds in a restricted account within a short time frame and provide proof that this has occurred, with contempt of court charges a possible reaction if he refuses.
You can press criminal charges against the executor as well as civil charges, if you have enough proof that a crime has been committed. This option depends on how your state defines larceny and theft, and what provisions the criminal justice system makes for restitution. However, prosecutors tend to be reluctant to file criminal charges in such cases. In addition, if the executor of the will is a family member, you may face an even harder time filing a criminal case, as prosecutors are less than eager to step into the middle of a family matter.
- LAProbatelaw: Protection From Robbery of Probate
- American Bar Association: Shutting Down a “Fiduciary” Who Is Misusing Trust Assets
- The Legacy Lawyers: What Happens If an Executor Steals From the Estate
- Kenlan, Schwiebert, Facey & Goss, P.C: What Lawyers Need to Know About Preventing or Prosecuting Theft by Fiduciaries