Dealing with Unauthorized Charges to a Parent’s Estate During Probate

This FAQ explains how unauthorized charges made against a deceased parent’s assets are handled during the probate process in South Dakota. It uses common hypothetical facts to illustrate the steps the probate court and the personal representative (executor/administrator) typically take. This is educational information only and is not legal advice. For help with a specific situation, consult a South Dakota probate attorney.

Detailed answer — how the probate process addresses unauthorized charges

Overview of the probate role

When a person dies, a court-supervised process (probate) sorts the decedent’s assets, pays valid debts and taxes, and distributes what remains to heirs or beneficiaries. In South Dakota, the probate framework is found in Title 29A of the South Dakota Codified Laws. For the text of the statutes, see the South Dakota Codified Laws (Title 29A): sdlegislature.gov – Title 29A.

What counts as an unauthorized charge?

An “unauthorized charge” means money taken from the decedent’s bank account, credit card, or other estate asset without legal authority. Examples include a family member charging personal expenses to the decedent’s account after death, a caregiver withdrawing funds without permission, or a vendor continuing to bill the estate without a valid contract.

Key probate steps that address unauthorized charges

• Appointment of a personal representative: The court appoints a personal representative who must secure and manage estate assets and pay valid claims.
• Inventory and account: The personal representative inventories estate assets and should identify irregular withdrawals or unauthorized charges.
• Notice to creditors and filing claims: The representative provides required notices so creditors can file claims. If someone claims a charge was valid, they may present evidence as a creditor. Conversely, the estate or heirs can object to unauthorized claims.
• Allowance or rejection of claims: The personal representative decides whether to allow or reject creditor claims. If the representative wrongly pays an unauthorized charge, the estate may later seek recovery.
• Accountings and objections: Heirs and interested parties can review the representative’s accountings. If an accounting shows unauthorized charges, heirs can object to the accounting with the probate court.
• Recovery and surcharge: The probate court can order recovery of estate funds taken without authority. The court may surcharge (hold financially responsible) the person who took the money, require repayment to the estate, and impose interest or fees.
• Removal of the personal representative: If the representative failed to protect assets or improperly approved unauthorized charges, interested persons can petition the court to remove the representative and seek an accounting or surcharge against them.
• Civil or criminal remedies: In addition to probate remedies, the estate or the state may pursue civil claims (conversion, unjust enrichment) or criminal charges (theft or exploitation) against a person who took estate funds without authority.

How this often plays out — a short hypothetical

Hypothetical: A daughter has access to her late mother’s checking account and pays her own credit card bill from that account after the mother dies. The personal representative later discovers the payments during the required inventory. The representative can:

• Include the unauthorized withdrawals in the estate accounting;
• Demand repayment from the daughter; if refused, file a petition in probate court to surcharge her and recover the funds;
• If the representative approved the payments improperly, heirs can petition to remove the representative and pursue recovery from either the representative or the daughter; and
• Pursue civil claims for conversion and, if facts suggest wrongdoing or exploitation, notify law enforcement about possible criminal conduct.

Time limits and urgency

Probate actions can include statutory deadlines for creditor claims and for approving accountings. These time limits vary depending on the notice given and the stage of administration. Because delays can prejudice the estate’s ability to recover assets, act promptly: secure records, freeze accounts if possible, and speak to a probate attorney right away.

Evidence the court will want

• Bank statements and transaction histories showing the unauthorized charges;
• Copies of the decedent’s will and any account authorizations or power of attorney (note: a power of attorney ends at death);
• Communications that show intent (emails, texts, invoices); and
• Sworn statements from witnesses or affidavits describing how the charges occurred.

What the personal representative must do

The representative must act in the estate’s best interest: identify and secure assets, investigate possible unauthorized transactions, contest improper claims, and ask the court to order repayment if necessary. If the representative fails in these duties, beneficiaries can seek court intervention.

Helpful hints

• Preserve all records: Download bank and credit-card statements immediately and keep originals where possible.
• Freeze or limit account access: Contact banks to inform them of the death and ask about freezing accounts until the representative is appointed.
• Do not self-help: Avoid removing funds or reversing transactions without court approval—doing so can complicate the estate’s position.
• Talk to the personal representative: Ask for a copy of the estate inventory and accounting and raise concerns in writing.
• Consider a demand letter: A formal demand to repay unauthorized charges may resolve the issue without litigation.
• File objections in probate court: If the representative won’t act, beneficiaries can file petitions to compel an accounting, surcharge an improper taker, or remove the representative.
• Explore civil and criminal options: If the charges suggest theft or exploitation, report the conduct to local law enforcement and consider civil remedies.
• Get legal help early: Probate practice has strict timelines and procedural rules. A South Dakota probate attorney can advise specific steps, preserve claims, and represent you in court.

Where to look in South Dakota law: South Dakota’s probate statutes are organized in Title 29A of the South Dakota Codified Laws. For the statutory text and related probate rules, see: https://sdlegislature.gov/Statutes/Codified_Laws/Index/29A.

Bottom line: Unauthorized charges against a parent’s estate are taken seriously in probate. The personal representative and the probate court can identify unauthorized transactions, require repayment (surcharge), remove representatives who fail to act, and pursue civil or criminal remedies against those who improperly take estate funds. Act quickly, collect evidence, and consult a South Dakota probate attorney.

Disclaimer: This information is educational only and is not legal advice. It does not create an attorney-client relationship. For advice about a particular situation, consult a licensed attorney in South Dakota.