Who is the Victim When a Defendant Steals a Decedent’s Personal Property?

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When a defendant steals personal property that belonged to someone who recently died, who should be alleged as the victim in the criminal pleading? I’ve been asked this question several times, so I thought I would try to answer it here on the blog.

When the taking and the death are part of a single criminal transaction. When a victim is murdered and his or her property is taken in a single criminal transaction, the decedent is the proper person to be named as the owner of the property even though he or she may technically have been deceased at the moment of the taking. Cf. State v. Powell, 299 N.C. 95 (1980) (the defendant raped and murdered the victim, then took her television and automobile “as an afterthought once the victim had died”; this was not sufficient to support a conviction of armed robbery but did show that the defendant “committed the crime of [l]arceny”). The remainder of this post addresses the situation where the taking and the death are not part of a single criminal transaction, e.g., when a person dies of a heart attack on Monday and someone steals the person’s lawnmower on Tuesday.

Not the deceased. It is not proper to allege that the victim is the deceased person. He or she is no longer capable of owning property. See Lucas Martin & Karen Schulz, Am. Jur. Larceny § 114 (“[O]n the theory that death terminates ownership, an indictment or information is . . . not good if it lays the ownership of the thing stolen in a deceased person or his or her estate.”); State v. Davis, 4 N.C. 271 (1815) (“If the goods which belonged to a deceased person are stolen, they must be laid as the property of the executors or administrators, for on them the law casts the title.”).

Not the “estate.” Nor is it proper to allege that the victim is the decedent’s estate. State v. Jessup, 279 N.C. 108 (1971) (indictment alleging that stolen money was “of the estate of W.M. Jessup, deceased” was defective for failure to allege ownership in an entity capable of owning property, as “[t]he estate of a deceased person is not an agency for holding title to property,” but rather “is the property itself, to be administered by a personal representative commissioned by the court”); State v. Linney, 138 N.C. App. 169 (2000) (indictment alleging embezzlement from “the estate of Georgiana Alexander” was fatally defective because “[u]pon Ms. Alexander’s death [the property in question] belonged to [her son] George Alexander, and not the estate of Georgiana Alexander”; the State argued that the estate had a “special property interest” sufficient to make it a proper victim, and the court viewed this argument as “persuasive” but found itself bound by Jessup).

The personal representative, if there is one. A “personal representative” means an executor (for a decedent with a will) or an administrator (for a decedent without a will). G.S. 28A-1-1(5). If a personal representative has been appointed, it appears to be proper to allege that person as the victim. Davis, supra. That person generally has title to, and the right to possess, the decedent’s property until it is distributed. G.S. 28A-15-2 (“Subsequent to the death of the decedent and prior to the appointment and qualification of the personal representative or collector, the title and the right of possession of personal property of the decedent is vested in his heirs; but upon the appointment and qualification of the personal representative or collector, the heirs shall be divested of such title and right of possession which shall be vested in the personal representative or collector relating back to the time of the decedent’s death for purposes of administering the estate of the decedent. But, if in the opinion of the personal representative, his possession, custody and control of any item of personal property is not necessary for purposes of administration, such possession, custody and control may be left with or surrendered to the heir or devisee presumptively entitled thereto.”). It may be advisable to make clear that the personal representative is the victim in his or her representative capacity, e.g., “John Doe, as the personal representative for the estate of Jane Doe.” This practice is apparently the norm in civil litigation and would help to provide appropriate notice to the defendant.

The heir(s) or person(s) in possession, if there is no executor or personal representative. Because it often takes some time for a personal representative to be appointed, the most common scenario may be a taking where there is not yet a personal representative. In such a case, the decedent’s heir(s) or the person(s) in possession of the property may be named — assuming that whoever is in possession has some relationship to the decedent and is not him- or herself a malefactor. See Lucas Martin & Karen Schulz, Am. Jur. Larceny § 114 (“[I]n the absence of a statute governing the question, the property may be laid in the party in possession, especially where the larceny took place prior to the appointment of a personal representative or where the property was owned jointly by the decedent and the person who had possession. Furthermore, ownership of property of a deceased person which is stolen before appointment of a personal representative may be laid in a sole surviving heir-at-law.”); People v. Curoe, 422 N.E.2d 931 (Ill. Ct. App. 1981) (naming 10 heirs sufficient). Cf. Tex. Code Crim. P. Art. 21.08 (by statute, proper to name the personal representative, the heirs together, or any heir).

There may be some unusual larcenies that involve personal property owned by the decedent jointly with another person with a right of survivorship, and in such a case, the surviving owner is likely the proper party to name as the victim. (For more information about this type of property, see this paper by my colleague Meredith Smith, an expert in trusts and estates who helped me with this post.)

What if the victim dies after the theft? In that case, the pleading should allege the victim as of the time of the theft. The fact that the victim has since died is irrelevant. See Lucas Martin & Karen Schulz, Am. Jur. Larceny § 114 (“In case of the death of the owner of stolen property after the theft and before an indictment is returned, the ownership of the stolen property is properly laid in the owner as of the date of the offense.”).

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