Can you stop a sibling from using your deceased parent’s bank account to pay a mortgage before an administrator is appointed?

Short answer: Possibly — but your options and the quickest path depend on who lawfully owns the account, whether the sibling has legal authority, and how the bank treats access after death. You may ask the bank to freeze the account, petition probate court for control of the estate, request emergency (temporary) court relief, and pursue civil claims like conversion or unjust enrichment if the sibling improperly spends estate funds. This article explains how Montana law treats these situations and the practical steps you can take.

Detailed Answer

1. Who legally controls a deceased person’s bank account?

Ownership depends on how the account was set up:

• If the account was in your parent’s name alone (no beneficiary, no joint owner), it generally becomes part of the decedent’s probate estate when they die. Only the person appointed by the court as the personal representative (administrator or executor) has the authority to manage and distribute those funds under Montana probate law (see Montana Code Annotated, Title 72 — Probate of Estates: https://leg.mt.gov/bills/mca/title_72/).
• If the account named a payable-on-death (POD) or transfer-on-death (TOD) beneficiary, the money passes directly to that beneficiary outside probate. A bank can pay the named beneficiary after it verifies the death certificate and beneficiary’s ID.
• If the account was a joint account with rights of survivorship (a joint owner named), the joint owner typically becomes sole owner automatically at death and can use the money.
• Any power of attorney ends at the principal’s death. A sibling relying on a POA has no authority after death to manage the account.

2. What if the sibling is spending estate funds before a personal representative is appointed?

If the sibling is withdrawing money from an account that should belong to the estate (no POD, no valid survivorship), Montana law allows interested persons to seek relief from the probate court. Possible legal theories and remedies include:

• Asking the bank to freeze the account until the court issues letters testamentary or letters of administration.
• Filing a petition in probate court to appoint a personal representative (administrator or executor). The court can then order an accounting, require the sibling to return misapplied funds, and direct how estate assets should be used under Montana probate rules (see Title 72: https://leg.mt.gov/bills/mca/title_72/).
• Seeking emergency injunctive relief from the probate court or district court to stop further withdrawals and preserve estate assets while the probate appointment proceeds.
• Pursuing civil claims outside probate such as conversion (wrongful interference with property), unjust enrichment, or breach of fiduciary duty (if the sibling later becomes a fiduciary). These remedies can force return of funds and may include damages or interest.

3. What does the bank typically do after learning of a death?

Banks usually require a certified death certificate before they act. If an account is solely in the decedent’s name, many banks will freeze disbursements until someone presents court-issued letters testamentary or letters of administration. If a sibling used the account without bank permission, the bank may still have already released funds; you can still ask the court to order recovery from the sibling.

4. Practical steps to take right away in Montana

1. Collect documents: death certificate, recent bank statements, mortgage statements, any documents showing account ownership or beneficiaries, and any written communications with the sibling or bank.
2. Contact the bank in writing: inform them the owner is deceased and ask whether the account is frozen, who has accessed it, and what documents they require to release funds.
3. Send a written demand to the sibling (polite and factual): ask them to stop withdrawals and preserve records of how they used the funds. Keeping a paper trail can help in court.
4. If the sibling refuses, file a petition in Montana probate court to open probate and appoint a personal representative. The court can grant temporary protection of estate assets while it resolves the appointment. See Montana probate procedures under Title 72: https://leg.mt.gov/bills/mca/title_72/.
5. Consider asking the court for emergency relief (temporary restraining order or preliminary injunction) if assets are being dissipated quickly.
6. Consult a Montana probate attorney as soon as possible. An attorney can draft the probate petition, prepare requests for emergency relief, and advise whether a separate civil claim (conversion or unjust enrichment) is appropriate.

5. Timing and costs

Probate filings and emergency motions move at the court’s schedule. If funds are being spent immediately for a mortgage, the court may act quickly on a short notice emergency motion. Be aware that filing for probate or civil claims involves court fees and, commonly, attorney fees. If the estate has limited cash, the court may prioritize claims and the costs of administration.

6. Evidence that helps your case

• Bank records showing withdrawals and transfers after the date of death.
• Mortgage statements showing payments funded from the account in question.
• Communications with the sibling admitting use of the funds (texts, emails, letters).
• Documentation showing the account was solely in the decedent’s name (no POD beneficiary, no joint owner).

7. When a sibling may have a lawful claim

If your sibling is a rightful joint owner or POD beneficiary, they likely have the legal right to use the funds. Also, if the deceased expressly authorized the sibling before death to handle mortgage payments and that authority appears in writing (for example, a trust or a designation), the sibling’s actions may be lawful. Absent those facts, spending estate funds without court authority is risky for the sibling and triggers potential legal claims against them.

Helpful Hints

• Act quickly. Gather paperwork and contact the bank promptly to preserve evidence and assets.
• Avoid confrontation. Use written demands and court filings rather than physical confrontations.
• Ask the bank for transaction records in writing. Banks often preserve and produce records that courts rely on.
• File probate in the county where the decedent lived. A probate petition starts the legal process and gives the court the power to protect assets.
• Look for non-probate transfers (POD, joint tenancy, trust). Those assets may not be subject to probate and the sibling may lawfully access them.
• Consider mediation. If the sibling acted in good faith, a negotiated solution (accounting and repayment plan) may avoid litigation costs.
• Talk to a Montana probate attorney. Probate procedures and remedies are fact-dependent and an attorney can advise on timing, filings, and likely outcomes.

Where to find Montana statutes and forms

Montana’s probate statutes appear in the Montana Code Annotated, Title 72 — Probate of Estates: https://leg.mt.gov/bills/mca/title_72/. For practical court forms and local procedures, check the Montana Judicial Branch resources and local district court clerk’s office: https://courts.mt.gov/.

Disclaimer

This is general information about Montana law and not legal advice. It does not create an attorney-client relationship. For advice tailored to your specific situation, consult a licensed Montana attorney.