Can't Touch This: Understanding the Limits of a Durable Power of Attorney

Do Not Spend or Withdraw Money from a Deceased Person's Bank Account After Their Death

One of the most problematic mistakes family members make in the immediate aftermath of a loved one's death is accessing the deceased person's bank account. We've had cases where people have withdrawn cash from the ATM using the deceased person's debit card. We've also had cases where people have used the debit card to buy groceries, fill up the car with gas, and pay for family meals. None of this is legal--no matter how well-meaning your intent. It does not matter if you had power of attorney for the deceased person because your authority under that document ends upon death. It does not matter if your loved one gave you permission to do it with their dying breath. As soon as that person dies, you cannot touch that person's money, access their account, or use their card until the court appoints an Executor for the estate.

When we are working on the accountings for probate cases, we have to reconcile every single penny spent from the bank account after the date of death. The more activity after death, the more suspicious the Clerk and the more of an uphill battle we face defending your actions. Do yourself--and us--a favor. Do not spend from the account.

Once you are approved as the Executor of the estate, you will have the legal authority needed to set up an estate bank and transfer funds from the personal bank account of the deceased into the estate. Then, you'll be in a better legal position to spend money for legitimate estate expenses. If there is something that absolutely must be paid before the estate account is established (for example, the funeral), the proper way to handle it is to pay the expense yourself and wait to be reimbursed once the probate estate is up and running.

There may be other bills that you would like to pay (like the mortgage payment or the car insurance bill) to avoid late fees, but again, the proper thing to do is to wait until the estate account is up and running. If the person who died had a trust and you are the successor Trustee, you will be able to access the money much more quickly than in cases where there is no trust. But you still need to be careful that money is being used for legitimate trust-related expenditures.

When in doubt, contact us before you take action. Otherwise, you may find yourself having to pay back to the estate the money you spent! If that horse has already left the barn and the money has already been spent, let's talk!

Phone: (919) 678-5761 Email: admin@leavealegacync.com