Inheritance Theft in Miami, Florida

Inheritance theft is a serious and unfortunately common problem in Florida. It occurs when someone — whether a family member, caregiver, personal representative, trustee, or other person in a position of access — wrongfully takes, diverts, or conceals assets that should pass to the rightful beneficiaries of an estate or trust. Florida law provides both civil and criminal remedies for inheritance theft, and beneficiaries who suspect that assets have been stolen have the right to take legal action to recover what is rightfully theirs.

What Is Inheritance Theft?

Inheritance theft is not a single legal term but rather a broad category that encompasses various forms of wrongful conduct involving estate or trust assets. It can take many forms, including:

• Misappropriation by a personal representative. An executor or administrator who takes estate funds for personal use, pays themselves excessive fees, or diverts assets to favored individuals.
• Trustee self-dealing. A trustee who uses trust assets for their own benefit, makes unauthorized investments, or distributes trust funds improperly.
• Pre-death transfers obtained through fraud or undue influence. A family member or caregiver who manipulates an aging or vulnerable person into transferring property, changing beneficiary designations, or adding them to bank accounts before death.
• Concealment of assets. Hiding the existence of bank accounts, real property, valuable personal property, or other assets that should be included in the estate.
• Forgery. Creating or altering a will, trust, deed, or other document to redirect assets.
• Unauthorized transfers after death. Withdrawing funds from a decedent's accounts, taking personal property from the home, or transferring real estate without authority.

Signs of Inheritance Theft

Inheritance theft often occurs gradually and may not become apparent until after the estate is opened for probate. Warning signs that assets may have been stolen include:

• Unexplained withdrawals or transfers from the decedent's bank accounts in the months or years before death
• Missing valuables, jewelry, or personal property from the decedent's home
• Last-minute changes to a will, trust, or beneficiary designations, particularly when a new beneficiary was in a position of influence over the decedent
• A personal representative or trustee who refuses to provide an accounting or who delays the administration without explanation
• Real property that was transferred by deed shortly before death, often to a caregiver or one family member
• An estate that appears significantly smaller than expected based on the decedent's known assets and lifestyle
• New powers of attorney executed when the decedent was in declining health, used to transfer assets

Civil Remedies for Inheritance Theft in Florida

Florida law provides several civil causes of action for beneficiaries seeking to recover stolen inheritance:

Breach of Fiduciary Duty

A personal representative owes fiduciary duties to the estate and its beneficiaries under the Florida Probate Code. A trustee owes fiduciary duties to the trust beneficiaries under the Florida Trust Code (F.S. Chapter 736). When a fiduciary steals from or mismanages an estate or trust, beneficiaries can bring a claim for breach of fiduciary duty and seek damages, removal of the fiduciary, and disgorgement of any profits the fiduciary obtained through their misconduct.

Constructive Trust

When someone obtains assets through fraud, undue influence, or other wrongful conduct, a Florida court may impose a constructive trust on those assets. A constructive trust is an equitable remedy that treats the wrongdoer as holding the assets in trust for the rightful owner. This remedy can be used to recover real property, bank accounts, and other specific assets that were wrongfully taken.

Accounting and Surcharge

Beneficiaries can petition the probate court to compel a personal representative or trustee to provide a detailed accounting of all transactions. If the accounting reveals losses caused by the fiduciary's misconduct, the court can surcharge the fiduciary, meaning the fiduciary is personally liable to repay the estate or trust for the amount of the loss.

Petition for Removal

Under F.S. § 733.504, the court may remove a personal representative who has breached their fiduciary duty, become incapacitated, failed to comply with court orders, or is otherwise unfit to serve. Similarly, under F.S. § 736.0706, a trustee can be removed for breach of trust or other cause. Removal is often a critical first step in stopping ongoing theft.

Civil Theft Under F.S. § 772.11

Florida's civil theft statute allows a person who has been the victim of theft to recover treble damages (three times the amount stolen) plus attorney's fees and costs. To bring a civil theft action, the plaintiff must first send a written demand letter to the alleged thief and allow 30 days for the stolen property to be returned. If the property is not returned, the plaintiff may file suit and, if successful, recover three times the amount of the theft.

Criminal Liability for Inheritance Theft

Inheritance theft can also give rise to criminal charges under Florida law. Depending on the value of the assets stolen, the theft may be charged as:

• Grand theft — a felony under F.S. § 812.014 for theft of property valued at $750 or more. Grand theft of property valued at $100,000 or more is a first-degree felony punishable by up to 30 years in prison.
• Exploitation of a vulnerable adult — under F.S. § 825.103, it is a crime to knowingly obtain or use the funds, assets, or property of an elderly person or disabled adult with the intent to deprive that person of those assets. This statute applies to theft that occurs before the decedent's death and can carry severe penalties.
• Fraud and forgery — forging a will, trust, deed, or other document is a criminal offense, as is obtaining assets through fraudulent misrepresentation.

While criminal prosecution is handled by the State Attorney's office and is separate from the civil probate proceeding, beneficiaries can report suspected theft to law enforcement and the criminal case can proceed alongside the civil action.

Recovering Stolen Assets

Recovering stolen inheritance in Florida often requires swift legal action. The longer stolen assets remain in the hands of the wrongdoer, the greater the risk that they will be spent, hidden, or transferred to third parties. Strategies for recovering stolen assets include:

• Emergency injunctions. A court can issue a temporary injunction freezing bank accounts, preventing the sale of real property, or restraining the transfer of assets while the case is pending.
• Lis pendens. Filing a lis pendens puts the public on notice that real property is the subject of litigation, effectively preventing the wrongdoer from selling or encumbering the property.
• Discovery and subpoenas. Through the litigation process, attorneys can obtain bank records, financial statements, and other documents that trace where stolen assets went.
• Judgment liens and garnishment. If the court enters a judgment against the person who stole the assets, the judgment can be enforced through liens on real property, garnishment of wages and bank accounts, and other collection methods.

Preventing Inheritance Theft

While it is not always possible to prevent inheritance theft, there are steps that can reduce the risk:

• Choose a trustworthy and competent personal representative and trustee, and consider naming a professional or institutional fiduciary if family dynamics are contentious
• Include clear and specific provisions in wills and trusts that require regular accountings and limit the fiduciary's discretion over distributions
• Require a bond for the personal representative, which provides a source of recovery if the personal representative misappropriates funds
• Review and update estate plans regularly to ensure they reflect current wishes and account for all assets
• Be alert to signs of undue influence or exploitation, particularly when an elderly family member is dependent on a caregiver or one family member

Contact a Florida Inheritance Theft Attorney

If you suspect that someone has stolen from an estate or trust, or if you have been wrongfully accused of inheritance theft, it is essential to consult an experienced attorney immediately. The attorneys at Law Offices of Albert Goodwin, PA represent beneficiaries, heirs, and fiduciaries in inheritance theft cases throughout South Florida. We can help you investigate the suspected theft, take emergency action to protect assets, and pursue recovery through the courts.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.