Detailed Answer
Short answer: If a person withdraws money from a decedent’s bank account or uses credit cards after the owner died, the estate (through the personal representative) can often seek to recover those funds. Recovery depends on who legally owned the money after death (joint owners or named beneficiaries versus probate-only assets), whether the withdrawals were authorized, and which remedies are practical under Wisconsin law.
How ownership works right after death
- Accounts titled jointly with right of survivorship or with a named pay-on-death (POD) or transfer-on-death (TOD) beneficiary generally pass outside probate to the surviving owner or beneficiary. Those funds are usually not part of the probate estate.
- Accounts in the decedent’s sole name with no POD/TOD designation become part of the probate estate. After death, no one other than an authorized representative (personal representative/executor) has a legal right to withdraw or spend those funds.
- Credit card accounts: If the cardholder is deceased, the estate is generally responsible for authorized charges. A person who charges expenses after the cardholder’s death without authority may be personally liable for those charges.
When taking money after death is wrongful
If the account or the credit card belonged solely to the decedent and there was no valid beneficiary or joint-owner right, withdrawals after death are treated as wrongful and can be challenged. Possible legal claims include:
- Civil claims for conversion (wrongful exercise of control over the estate’s property).
- Claims for unjust enrichment or money had and received.
- Requests that a court impose a constructive trust (treat the withdrawn funds as held for the estate).
- In some circumstances, criminal charges such as theft may apply. Wisconsin’s criminal theft statute is at Wis. Stat. § 943.20: https://docs.legis.wisconsin.gov/statutes/statutes/943/20
Bank and credit-card practices
- Banks usually freeze or hold accounts once they learn of a death. A personal representative presents the death certificate and letters testamentary or letters of administration to obtain access.
- If a bank pays money out after notice of death or to the wrong person, the bank itself may also face liability or may assert it paid in good faith. That makes tracing the payments and documenting notice dates important.
- Credit card issuers will typically stop authorizing new charges once notified. Post-death charges can be disputed, and the estate can demand account statements and transaction detail.
Typical steps an estate can take to recover money
- Identify and secure records. The personal representative should obtain the decedent’s bank and credit-card statements as soon as possible and preserve evidence (statements, online records, ATM receipts).
- Determine title. Confirm whether the account was joint, had a POD/TOD beneficiary, or was solely in the decedent’s name.
- Send a demand letter. The personal representative (or an attorney) typically sends a written demand to the person who withdrew funds asking for return or accounting.
- File a probate objection or estate action. If the person refuses, the personal representative can file a civil claim in probate court or circuit court for conversion, unjust enrichment, or to quiet title and recover assets as part of estate administration.
- Seek temporary relief. If assets may be dissipated, the estate can ask the court for temporary injunctive relief, an accounting, or to freeze the funds while the dispute is resolved.
- Consider criminal referral. If the conduct appears intentionally fraudulent or theft-like, the personal representative can report the conduct to local law enforcement or the district attorney for possible criminal investigation under Wis. Stat. § 943.20 (theft).
Limits, defenses, and realities
- Joint owners or valid POD/TOD beneficiaries likely keep the funds. The estate normally cannot recover those.
- If the withdrawing heir can show the decedent authorized transfers before death (gifts, authorized withdrawals, or power of attorney transfers made legally before death), recovery may be barred.
- Practical limits: small amounts may not be worth expensive litigation. Consider the estate’s size and likely recovery versus legal costs.
- Timing: act promptly. Banks may purge electronic records; witnesses forget; and statutes of limitation can bar claims later (speak with counsel early).
Example hypothetical
Imagine a parent died owning a checking account in their sole name with $20,000. One heir withdrew $5,000 after the death to pay personal bills and kept the rest. The personal representative discovers the withdrawal on the next statement. The representative should demand return of the $5,000 and, if refused, can sue for conversion and seek an accounting and court order requiring the heir to return the money to the estate. If the heir instead proves they were a joint owner or named beneficiary, the estate’s claim would likely fail.
When to contact a Wisconsin attorney
Contact an attorney if:
- The withdrawn amount is substantial relative to the estate.
- The person who withdrew funds claims a right to the money but the title is unclear.
- You need urgent court relief because funds are being dissipated.
- You want to consider criminal referral or need counsel to prosecute a civil claim in Wisconsin court.
For general information on Wisconsin statutes and probate rules, the Wisconsin Legislature statutes site is a primary resource: https://docs.legis.wisconsin.gov/statutes/
Disclaimer: This article provides general information about Wisconsin law and common legal options. It is not legal advice and does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Wisconsin attorney.
Helpful Hints
- Act quickly: request bank and credit-card statements immediately after learning of the decedent’s death.
- Check account titles and beneficiary designations before assuming funds are estate property.
- Keep a written record of all contacts, demands, and responses from heirs, banks, and card issuers.
- Ask the bank in writing whether they received formal notice of death and when they froze the account.
- If you are the personal representative, get official letters testamentary/administration from probate court to present to banks and creditors.
- Before suing, weigh likely recovery against legal costs, especially for modest sums.
- Consider mediation or settlement if relationships matter and the facts are mixed; courts can be slow and costly.
- If you suspect criminal wrongdoing, preserve evidence and discuss a referral to law enforcement with counsel.