Glossary
Estate theft – The theft or misappropriation of assets belonging to an individual’s probate or trust estate, either through fraud, forgery, stealing personal property, or undue influence.
Undue influence – When an individual asserts influence on a vulnerable person to the degree that the compromised person’s will is overcome, often to make changes to their estate planning documents, retirement and insurance policy beneficiaries, bank accounts, and real property, for their own personal, unfair gain.
Breach of fiduciary duty – A fiduciary duty is a responsibility an executor, administrator, personal representative, trustee, attorney-in-fact under a power of attorney or other agent has to act in the best interests of the principal or the beneficiaries of their estate and fulfill the principal’s wishes. A fiduciary breach occurs when a fiduciary fails to discharge one of their fiduciary obligations.
Fraudulent misrepresentation – When a bad actor intentionally deceives another by lying about the true nature or impact of a document, the contents of a will or trust, ownership of a property or asset, forging documents, another person’s acts or omissions, or making false promises.
Losing a family member is hard enough on its own. However, if you find that someone is stealing from an estate, the news can be heartbreaking, especially if it’s your sibling. If you suspect a sibling is stealing from an estate or trust of which you are a beneficiary or heir, you very likely need the protection of a trust litigation attorney. Contacting an attorney as soon as possible can help you mitigate the damage caused by the theft.
Unfortunately, sibling theft of estate assets happens far more often than one might think, and it can throw a significant wrench in the estate and trust administration process. Fortunately, an experienced trust and estate litigation attorney can usually help recover stolen assets, and quite possibly have your sibling disinherited, get an award for double the value of the assets stolen, and recover attorney’s fees and costs.
In this guide, we’ll outline what you should do if you believe your sibling is stealing from an estate. Using a hypothetical case scenario, we’ll illustrate how a case of sibling estate theft may occur and what your legal avenues may be.
Defining estate theft
Estate theft occurs when a bad actor steals or misdirects assets from a decedent’s estate or trust’s inventory. Estate theft can take many forms, from stealing physical belongings outright to misdirecting assets for someone else’s personal benefit. Estate theft often occurs when someone acts in contravention of the express gifting terms of the will or trust document.
The most common types of estate theft include:
- Physical personal property theft – This involves taking tangible items from an estate, like personal belongings, such as jewelry, art, or antiques.
- Financial asset misappropriation – This occurs when finances from an estate are misappropriated and transferred to someone for whom they are not intended, such as personal accounts or payment of debts not owed by the estate.
- Document forgery or alteration – This involves using fraudulent methods to alter will, trust, property title, account or beneficiary designation documents to wrongfully take assets for personal gain.
- Digital asset theft – This can involve stealing digital currency, accessing online accounts, or transferring ownership of digital assets without permission.
Estate theft can occur at the hands of a personal representative, caregiver, family member, beneficiary, heir or even a stranger. However, one of the most difficult scenarios is when you discover that your sibling is responsible for the theft.
What are the signs of sibling theft?
Discovering that a sibling is stealing from an estate can be a devastating experience, but it’s important to be prepared for any scenario to protect the intent of your deceased loved one. Understanding the signs of sibling theft will allow you to identify the issue early and minimize any harmful effects on the estate.
Some common signs of sibling theft include:
- Unexplained financial activity—Question marks around specific financial transactions, such as large withdrawals or transfers, unusual increases in cash spending, new accounts or credit cards, or siblings being added to existing accounts as authorized users, beneficiaries, or joint owners can indicate manipulation of financial accounts for personal gain.
- Sudden changes in estate planning documents – A will or trust that suddenly names new beneficiaries, executors or trustees, or which disproportionately benefit a sibling may indicate wrongdoing.
- Possession of estate assets – If a sibling is found with property belonging to the estate or using estate assets for personal benefit, it’s possible that these assets are the product of theft.
- Interference with estate management – If a sibling becomes involved in the estate management process, suggests the hiring of new or different estate planning professionals, and limits others’ access to information or excludes other siblings from decision-making processes, theft often is not far away.
Other red flags can include financial irregularities like missing financial records, physical signs like missing valuables, behavioral signs like denial of access to financial documents or secretive behavior, legal and administrative signs including delays in probate or trust administration, refusing to share information, or witnessing other shady behaviors.
If you notice any of the above signs or red flags, you should consult an attorney as soon as possible. A skilled attorney can help you investigate your suspicions and take actions necessary to protect your and the estate if appropriate.
Sibling Estate Theft In Action
The following hypothetical case scenario can help illustrate the difficulties that may arise in a case of sibling estate theft. This example highlights some potential challenges as well as possible legal mechanisms and outcomes. Of course, every case is unique, and it’s important to consult an experienced probate litigation attorney to determine the best course of action for your specific situation.
Ben and Tina were appointed as co-trustees of their mother, Sarah’s, trust. The two children were Sarah’s only heirs. However, Tina was their mother’s primary caretaker because Ben lived across the country and could only visit periodically, although he still maintained regular contact.
Over time, Tina’s caregiving became questionable. Without informing Ben, Tina had Sarah add her to bank accounts and started withdrawing significant sums, up to $25,000 a month. Tina claimed this was to make managing expenses for caregiving easier. However, valuable family heirlooms, including Sarah’s wedding ring and other jewelry, also started to disappear.
When Sarah passed away, Tina provided Ben with a copy of the trust. Ben noticed that Tina had been made the sole trustee. He also noticed that Tina was set to receive 90% of the estate assets and he was set to receive only 10%. He worried that the trust did not reflect Sarah’s intentions, but instead Tina’s for her own financial gain, especially due to Tina exhibiting the above signs of estate theft. Of course she denied any wrongdoing.
These signs caused Ben to seek the help of an attorney to further investigate Tina’s actions to determine whether and what actions should be taken to protect Ben’s interests in his deceased mother’s estate. This hypothetical case can help provide some insight into what the process of dealing with sibling estate theft might look like initially.
Steps to take if you suspect theft and how to respond
It’s natural to get angry, frustrated, and sad when a sibling breaches your trust. We see this situation every day and suggest seeking legal counsel for the best possible resolution.
If you suspect that your sibling is stealing from a loved one’s estate, you should take the following steps:
- Contact a trust and estate litigation attorney as soon as you suspect a sibling may be stealing your inheritance.
- Demand an inventory and accounting of the probate estate or trust assets from the estate administrator, personal representative, executor, or trustee.
- Provide the attorney with any information or evidence you have that relates in any way to your suspicions. Include good and bad facts so the attorney can give an honest assessment.
- Work closely with an experienced estate litigation attorney who can hold your hand and guide you through the complexities, court processes, investigation and diligence, and help put you in a position to protect the decedent’s wishes.
In Ben’s case, he consulted an attorney who helped guide him in his efforts to protect his mother’s intentions for her estate:
- Formally requested an inventory and accounting of assets from his sister Tina, including records of financial transactions, bank statements, and a list of personal property, which she refused.
- In response to Tina’s refusal to account, his lawyer filed a petition to compel an accounting of the trust, including petitioning for Tina’s suspension and removal as trustee for her failure to account, fiduciary breaches, theft, undue influence, and financial elder abuse.
- Presented evidence to the court, including bank statements showing the money Tina stole, photographs and insurance forms identifying heirlooms that went “missing” and now are in Tina’s possession, and Tina’s role in procuring the estate planning changes that inequitably benefited her while mom was compromised, as shown in the medical records presented. He also highlighted that Tina was a caretaker for Sarah, which created a confidential, fiduciary relationship and made Sarah susceptible to Tina’s undue influence.
By following the above steps, Ben was able to submit a detailed challenge to protect his interests in the estate and his mom’s true intentions.
Finding out that a sibling is stealing from a loved one’s estate is often a devastating and disappointing experience. However, it’s important to remain hopeful and proactive and know that we’ve helped many families through experiences just like this so they could go on to have healthy, productive lives, together and apart.
My sibling is stealing from the estate or family trust, can I get my share of the assets back?
The short answer is, “Yes, depending on the facts and circumstances of your specific case, you should be able to pursue the assets your sibling stole.” At RMO, we have seen it all, from assets turned over voluntarily in response to a strongly worded demand letter outlining the stiff penalties the thieving sibling faces if they fail to comply with our demands, to drawn out trials and appeals, where assets have not been recovered until after appeals have been exhausted, which can take years.
In instances where thieving siblings refused to comply with written demands and cases proceed to litigation in the probate courts, cases are often settled, with some or all of the assets returned, sometimes with additional payments or contributions from the bad actor. Where negotiated settlement, mediation or mandatory settlement conferences are not successful in resolving these disputes, probate court trials can result in orders and judgments requiring the return of the stolen assets, as well as the payment of double damages, attorney’s fees, costs, and other damages.
Do I need proof they’re stealing assets from the estate?
The short answer is, “Yes.” Working with an experienced trust litigation attorney who will quarterback the investigation, due diligence and detective work required will allow you to collaborate to ensure evidence is preserved for presentation in its best light. Evidence disappears, and memories fade, however, so the sooner you contact an experienced trust litigation attorney near you, the better. It’s much easier for the attorney to follow a fresh trail of information and documents.
Legal process and strategies
The legal process in a case of estate theft often depends on the method used to steal and how it was carried out. Typically, a trust litigation attorney may utilize a variety of strategies to bring restitution to a family in a case of estate theft.
Strategies for various forms of theft
In a case where a sibling steals valuable personal property or physical assets, an attorney will likely try to avoid court proceedings by sending a demand letter to the sibling urging them to return the assets. If the sibling does not respond to the demand letter, then it will be up to you to authorize the attorney to pursue those assets through probate court proceedings.
Aside from stealing physical assets directly, there are also several other ways that a sibling can commit estate theft, which may require support from an attorney with specific experience in the practice area due to the unique circumstances.
Some of the other common ways a sibling can commit estate theft include:
- Forged documents – A sibling may forge your loved one’s signature on a will, trust, beneficiary designation, deed, or other document. In these cases, your estate litigation attorney will work closely with a forensic handwriting expert to investigate the forgery and present their findings to the court.
- Fraudulent misrepresentation – A sibling may intend to deceive your loved one by presenting them with documents that are not what they state they are, or deceive interested parties in an estate by presenting fake documents, accoutings, and other representation to dissuade you from pursuing your true interests, all for their own personal benefit. In these cases, an attorney will seek to have any fraudulently-obtained assets recovered.
- Undue influence – In some cases, a trustor or settlor may lack mental capacity due to a medical condition or otherwise become particularly vulnerable to influence based on their age, illness, isolation, dependency or other factors, and a sibling may take advantage of this to influence them to redirect assets in estate planning or beneficiary designation documents for their own personal gain. In these cases, an attorney will likely petition for a trust or will to be invalidated and the method of distributing the estate assets reverted back to the document that existed before the undue influence occurred.
If you are confronted with any of the above concerns, it’s a good idea to consider seeking an attorney who has experience with breach of fiduciary duty or undue influence cases. Choosing a skilled attorney in one of these specific areas will give you the greatest chance of achieving the best possible outcome for your situation.
Addressing estate theft in action
In our more complex hypothetical scenario above, Tina committed all of the above acts, breaching her fiduciary duty and unjustly influencing her mother to increase her share of the trust estate assets. As a result, Ben’s lawyer had to take several steps in response, including not only advocating for the recovery of Tina’s stolen assets but also petitioning to have her removed as trustee and have the trust reverted back to its original form.
In response, the judge ruled that Tina had indeed breached her fiduciary duty by failing to account and misappropriating funds and valuables. The judge also found that the trust was made under undue influence and that Tina’s undue influence constituted financial elder abuse.
Consequently, the court found that the current trust was invalid and reinstated the original version of the trust, reestablishing Ben’s full interest in the trust. The judge also removed Tina as trustee and appointed a neutral third-party professional fiduciary as trustee to manage the trust. The new trustee would conduct a thorough accounting and ensure the estate was managed and distributed according to Sarah’s wishes, and, potentially, pursue Tina for any other assets that were misappropriated.
Successful on his claims, Tina also found herself disinherited for having committed financial elder abuse against her mom and subject to double damages for the value of the property she stole, as well as responsible to pay Ben’s attorney’s fees and costs.
What penalties and legal options exist for a sibling stealing from an estate?
Generally, the theft of estate assets by a sibling is treated as a civil matter but in the probate court. The fact the matter is civil and not criminal just means that the only remedy is financial compensation. No jail time is involved. As a victim, you do have the option to make a criminal complaint and ask the district attorney to prosecute your sibling, either when you suspect theft, or have proven they stole your assets or inheritance from the estate.
While we don’t typically see clients who want to send their siblings to jail, it is a legal option. That said, the threat of criminal charges CANNOT be used as leverage to motivate a sibling who has stolen assets to return those assets quickly in your civil probate litigation matter.
In Ben’s case, Tina was penalized for her actions by losing her role as trustee, being forced by the court to return stolen assets, paying double damages, attorney’s fees and costs, and being disinherited. However, she did not go to jail.
How should you feel when a sibling steals your inheritance?
It’s natural to feel angry, violated, disappointed, let down, scared, and hurt. Any number of feelings. Just remember, regardless of what your brother or sister did, you have the ability to respond and seek to right their wrong. In our experience, a calm, measured approach almost always is the best course, and that can be difficult when you are “in it” after discovering your sibling stole your inheritance.
Hiring an experienced trust litigation attorney allows you to process your feelings while relying on the objective guidance of your counsel to who can help guide you through these processes and help you make well-informed decisions aimed at protecting your rights and your loved one’s intentions. Many clients experience a sense of relief once they’ve begun the process with us just from knowing they’re not “crazy,” many others have similar experiences, there is a path forward, and we have the experience to guide them along that path. Together, we form a team that helps protect you, your family, and your rightful inheritance.
How to cope with the emotions of your sibling stealing your inheritance
Sometimes the most difficult part of these cases is dealing with the emotional toll of coming to grips with the reality that your sibling stole your inheritance. At RMO, we pride ourselves on doing more than just counseling clients on the “X’s and O’s” of probate litigation. We understand how emotionally charged these situations can be, and we take the time to ensure you not only understand the legal ramifications of your case but crafting a strategy that also speaks to your human goals in guiding you through what likely may be the only litigation, and perhaps the only family litigation, you will ever be involved in. Our goal always is to leave every client in a better place than we found them, both financially and emotionally.
When should I consult a trust litigation attorney?
You should consider consulting with a trust litigation attorney the moment you suspect a brother or sister is stealing your inheritance or assets from the estate. The sooner you engage counsel, the sooner they can open communications with the suspected sibling and/or their attorney to address the theft. The odds of recovering assets are much higher the sooner you act. An attorney can help you before your sibling has a chance to “spend” or hide assets.
Do I need a trust litigation attorney?
No, not any more than you need an electrician to wire your house or a plumber to fix your pipes, but it’s not recommended you do any of these things on your own. A trust litigation attorney has the experience to help you investigate estate theft and recover stolen assets more effectively and efficiently than you can do it alone. Engaging an experienced trust litigation attorney familiar with the local probate court in the county where the decedent lived and the assets were taken from usually gives you the best chance of success.
For example, if the decedent lived in Los Angeles, we recommend working with a trust litigation attorney in Los Angeles. That Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division and its local rules, versus a non-local attorney.
Find Support from RMO LLP
Discovering that your sibling is stealing your inheritance can be an emotionally devastating experience, causing a wide range of responses. Fortunately, with the help of an experienced inheritance dispute attorney, you have the best chance to take legal action against the thieving sibling and recover your estate assets in a timely manner.
At RMO LLP, we take every possible step to understand the circumstances surrounding your situation and the family dynamics involved. Our trust litigation attorneys work with you to determine the best path forward for recovering your assets, pursuing appropriate restitution, and bringing about the best possible outcome.
Schedule a consultation with our team today to learn more about your options.
RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit RMO Lawyers.
