Can someone use a deceased parent’s bank account before a personal representative is appointed? What you should know in South Carolina

Short answer: In South Carolina, a person generally has no legal authority to continue using a deceased person’s bank account for personal or household expenses unless they have been properly appointed as the decedent’s personal representative (executor or administrator) by the probate court or have express written authority from the bank based on a valid power of attorney that was effective before death. If a sibling is withdrawing funds or paying the mortgage from the decedent’s account before appointment, those actions may be unlawful and you have several civil and sometimes criminal remedies.

Detailed answer — how South Carolina law treats access to estate funds

When someone dies, their assets generally become part of their estate. Control of estate funds normally shifts to the personal representative once the probate court issues letters testamentary or letters of administration. Until the court issues those letters, no family member (including a spouse or child) has inherent authority to use estate funds except in narrow situations where the bank allows limited access or the decedent left specific, legally valid written arrangements.

Key points under South Carolina practice:

• The probate court appoints a personal representative. That person, once appointed, receives official authority (letters) to collect, pay debts, and manage the estate.
• If no personal representative has been appointed, a third party who withdraws or uses estate funds may be liable for conversion, unjust enrichment, breach of fiduciary duty (if they claim a duty), or may be required to account for and return funds to the estate. Criminal charges such as theft or embezzlement may also apply in some circumstances.
• Banks sometimes freeze a decedent’s account when presented with a death certificate. A bank may permit limited withdrawals only under narrow rules or to cover certain continuing obligations (for example, mortgage or property protection expenses) but banks have their own risk-based policies and are not required to allow such use without court authority.

For an overview of South Carolina probate law and how estates are administered, see the South Carolina Code resources and the statewide probate court information pages: South Carolina Code, Title 62 (Probate) and South Carolina Courts – Probate.

Immediate steps you can take if a sibling is using the decedent’s bank account

Act quickly to protect estate assets and your rights. Consider this checklist:

• Contact the bank. Provide a copy of the death certificate and ask whether the account was frozen and why the sibling is still allowed to make withdrawals. Ask the bank to preserve transaction records.
• Do not confront the sibling physically or in a way that escalates conflict. Instead gather evidence: bank statements, online transaction screenshots, mortgage statements showing payments, emails or messages about the withdrawals, and any documents the sibling claims give them authority (wills, powers of attorney, trust documents).
• File a petition in probate court seeking appointment of a personal representative. South Carolina probate clerks can explain the filing process. A personal representative can seek an accounting and recover improper withdrawals.
• Ask the probate court for emergency relief if funds are at risk. Courts can sometimes appoint a temporary or interim administrator or issue orders preventing further withdrawals.
• Consider filing a police report if you believe theft or criminal conversion has occurred. Criminal authorities may investigate parallel to probate remedies.

Legal remedies available in South Carolina

If your sibling used estate funds without authority, possible remedies include:

• Court-ordered accounting: the estate (through a personal representative) can demand a detailed accounting of funds received and spent.
• Restitution/recovery: the probate court can require the person to return improperly spent funds to the estate.
• Surcharge and removal: if the person was already a fiduciary or later is appointed and the court finds misconduct, the court can surcharge (financially penalize) them and remove them as representative.
• Constructive trust or unjust enrichment claims: a civil court can impose a constructive trust over funds or recover unjust enrichment for the estate.
• Criminal charges: where facts support theft or embezzlement, contact local law enforcement or the county solicitor’s office.

How the probate appointment process normally works in South Carolina

Someone must file a petition with the probate court in the county where the decedent lived. If there is a will, a named executor should petition to be admitted. If there is no will or the named executor is unavailable/unwilling, an interested person may petition to be appointed administrator. The court will issue letters when it appoints the personal representative. Until letters are issued, the court has not authorized a person to control estate funds.

For general filing guidance and local forms, contact the probate court in the decedent’s county or consult the South Carolina Judicial Branch probate pages: https://www.sccourts.org/probate/.

Evidence to gather before you go to court or speak with an attorney

• Death certificate;
• Bank account statements showing withdrawals and dates;
• Mortgage statements and loan account numbers (to show if payments continued or stopped);
• Communications (texts, emails) in which the sibling explains their actions or claims authority;
• Copies of any wills, powers of attorney, or trust documents;
• Contact information for the bank and mortgage company representatives.

Common outcomes and timing

Outcomes vary by case. Typical results include:

• The probate court appoints a personal representative and orders an accounting. Improper withdrawals are returned to the estate or credited against the wrongdoer’s share.
• The court grants temporary emergency relief if the estate’s assets are in immediate danger.
• In more contentious cases, litigation over conversion or surcharge may extend for months.

When to consult an attorney

Talk with a probate or estate litigation attorney when:

• The amount taken is significant or the estate is small;
• The sibling refuses to provide transaction records or return funds;
• You need to file an emergency petition in probate court to protect assets;
• Criminal theft may have occurred and you want to coordinate civil and criminal responses.

Helpful Hints

• Act quickly — banks can wipe out small estates fast. Preserve evidence and request that the bank preserve records immediately.
• Do not assume a family member has authority just because they are paying bills. Ask to see the court’s letters or other proof of authority.
• If you are a beneficiary, you have standing to ask the court for an accounting and to challenge improper use of funds.
• Keep communication civil and document everything. Courts and law enforcement will rely on paper trails and objective records.
• Use local probate court clerks and the South Carolina Courts website for forms and procedural steps: https://www.sccourts.org/probate/.

Disclaimer: This article explains general information about South Carolina probate practice and possible remedies but is not legal advice. It does not create an attorney-client relationship. Laws change and outcomes depend on the specific facts of each case. For advice about your situation, consult a licensed South Carolina attorney who handles probate and estate litigation.