Detailed Answer
Short summary: When unauthorized charges affect a deceased person’s accounts, the probate process gives the personal representative (PR) and the probate court tools to sort valid claims from improper charges, to recover funds taken without authority, and to refuse payment of illegitimate bills. Which remedy applies depends on who made the charges (a bank/creditor, a stranger committing fraud, or a family member/caregiver), whether the charges occurred before or after death, and whether the estate has enough assets. This article explains the typical steps under Nebraska law and practical options for heirs and interested persons.
1. Who manages these issues during probate?
After a person dies, the court appoints a personal representative to gather assets, pay valid debts and expenses, and distribute what remains to beneficiaries. The PR is responsible for identifying and responding to claims and for protecting the estate from improper or unauthorized charges. Nebraska’s probate statutes govern the PR’s duties and the court’s powers; see Nebraska Revised Statutes, Chapter 30 (Probate Code): https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=30.
2. Types of unauthorized charges and how they are treated
- Post-death charges by creditors or vendors: If a vendor bills the estate for goods or services delivered after death, the PR can object and typically will refuse payment unless the court finds the charge valid. Creditors must present lawful claims during probate to be allowed. The PR can defend against those claims.
- Post-death credit card or account fraud by third parties: These are fraudulent transactions. The PR should promptly notify the financial institution, freeze accounts where appropriate, preserve records, and consider a police report. The bank’s fraud procedures and consumer protection rules can sometimes reverse fraudulent charges without using estate assets.
- Charges made before death without authorization (identity theft or forgery): These may be creditor claims or tort claims. The PR can dispute bills as unauthorized and may pursue the person who committed the theft for repayment or restitution.
- Unauthorized withdrawals or transfers by a family member, caregiver, or fiduciary: If a person with access (power of attorney, joint account holder, caregiver) withdraws money inappropriately, the estate may have a civil claim for conversion, breach of fiduciary duty, or unjust enrichment. If the PR is the wrongdoer, interested parties can petition the court for an independent administrator and ask the court to surcharge (hold the wrongdoer financially responsible), remove the fiduciary, and order an accounting.
3. Typical probate steps to resolve unauthorized charges
- PR inventories assets and reviews account statements. Any suspicious or unauthorized charges should be flagged and documented.
- PR publishes and mails notice to creditors as required. Creditors must file claims to be paid from the estate. The PR can object to claims that are invalid or arise from fraud.
- If a creditor insists on payment, the PR can file an objection in probate court. The court decides whether the claim is allowed.
- If the PR finds evidence that someone took estate assets without authorization, the PR can bring a civil action against that person in county court or district court to recover funds. The PR can also ask the probate court for a surcharge or removal of the PR if the PR is implicated.
- If criminal theft or fraud appears likely, the PR or heirs should consider contacting law enforcement so prosecutors can evaluate criminal charges (the criminal process is separate from probate).
4. Evidence and documentation that help
Collect and preserve bank and credit card statements, receipts, electronic records (emails, text messages), canceled checks, copies of powers of attorney, account signatures, and any communications about payments. Order a certified copy of the death certificate so financial institutions will recognize the date of death. A clear paper trail makes it easier to prove unauthorized activity in probate court or a civil lawsuit.
5. Timing and deadlines
The probate process includes notice requirements and deadlines for creditor claims. The exact timeline and procedural requirements can affect whether a claim (including one based on an alleged charge) must be presented and the method for objecting. Consult the Nebraska probate statutes and court rules; see Nebraska Revised Statutes, Chapter 30 (Probate Code): https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=30. Because statutory time limits can bar claims or defenses, act promptly.
6. Remedies available to the estate or heirs
- Refusal to pay illegitimate creditor claims during probate.
- Civil suits for conversion, breach of fiduciary duty, or unjust enrichment to recover the funds.
- Removal of a fiduciary or personal representative and surcharge (court orders to repay estate for losses).
- Negotiation with banks or creditors to reverse transactions or settle disputed amounts before using estate funds.
- Criminal charges for theft, fraud, or forgery — pursued by prosecutors, not by the estate directly, though the estate’s documentation helps the investigation.
7. Practical next steps for family members or beneficiaries
- Contact the personal representative in writing and request an accounting if you suspect unauthorized charges.
- Gather and preserve records (statements, receipts, emails). Ask banks for transaction histories around the date of death.
- If the PR is uncooperative or you suspect the PR misused funds, consult a probate attorney about petitioning the court for an accounting, removal, or surcharge.
- Report clear criminal fraud or theft to local law enforcement and provide documented evidence.
- Consider hiring an attorney experienced in Nebraska probate and fiduciary litigation; they can advise on deadlines and the best forum for recovery.
Helpful Hints
- Freeze accounts only after consulting the PR or an attorney to avoid interfering with the PR’s lawful duties.
- Do not move estate property or spend funds without court authorization if you are not the PR.
- Keep clear records of all communications with the PR, banks, and creditors.
- If you are the PR, act promptly to notify banks, publish required creditor notices, and secure estate assets.
- If the estate lacks funds, recovering unauthorized charges may require separate litigation against the wrongdoer rather than paying creditors from estate assets.
- Preserve evidence of intent: unauthorized charges by a trusted person often turn on whether that person had permission to use the account.
Where to find the law: Nebraska’s probate rules and statutes are found in Neb. Rev. Stat., Chapter 30 (Probate Code): https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=30. For local court procedures or forms, check your county’s probate court website or contact the clerk of the probate court.
Disclaimer: This article explains general legal principles under Nebraska law and is for educational purposes only. It is not legal advice. For advice about specific facts or deadlines, consult a licensed Nebraska probate attorney as soon as possible.