Disclaimer: This is general information, not legal advice. I am not a lawyer. For advice about a specific situation, consult a Montana-licensed attorney or the probate court.
Quick answer
If a person withdraws money or charges a credit card after a parent dies and the account belonged solely to the deceased, those withdrawals or charges generally belong to the deceased person’s estate. The estate (through its personal representative) can usually demand return of the funds, sue for conversion or breach of fiduciary duty, and may ask the probate court to order recovery. Criminal charges for theft may also be possible. Whether the estate can recover the money depends on how the account was titled (sole name, joint with rights of survivorship, or payable-on-death), whether the person had legal authority, and whether a personal representative has been appointed.
Detailed answer — Who owns the money right after death?
Ownership depends on how the account or card was set up:
- Sole account in the deceased’s name: The funds are part of the probate estate. After death, withdrawals by anyone other than an authorized personal representative are generally improper.
- Joint account with right of survivorship: The surviving joint owner typically owns the funds automatically. Those funds are not part of the estate.
- Payable-on-death (POD) or transfer-on-death (TOD): The named beneficiary takes the funds directly and they pass outside probate.
- Authorized users on credit card accounts: An authorized user may have permission to use the card while the account holder was alive, but that permission generally ends at death. Charges after death typically become claims against the estate and may be improper.
Why withdrawals after death are usually recoverable
When funds remain part of the estate, the personal representative (executor or administrator) has the exclusive authority to collect estate assets and pay debts and distributions under Montana probate law. Unauthorized withdrawals by an heir are treated as taking estate property without authority. The personal representative can:
- Demand return of the funds.
- File a civil action in probate or district court for conversion or unjust enrichment to recover the money.
- Ask the probate court to surcharge the wrongdoer if that person was acting in a fiduciary role (for example, as an informal caretaker or co-trustee).
- If warranted, refer the matter to law enforcement for possible criminal prosecution for theft or related offenses.
Relevant Montana law (where to look)
Montana’s statutes governing probate, estate administration, and related matters appear in Montana Code Annotated Title 72 (Probate and Related Matters). You can review the statutes here: Mont. Code Ann. Title 72. For criminal theft and property crimes, see the Montana criminal statutes (Title 45): Mont. Code Ann. Title 45. For statutes of limitations and civil procedure, see Title 27: Mont. Code Ann. Title 27.
Practical recovery steps
- Preserve evidence. Do not destroy bank records, transaction receipts, or communications. Make copies of account statements showing the withdrawals or charges.
- Contact the bank or card issuer. Tell the bank that the owner died and ask whether the account has been frozen and whether any withdrawals were made after death. Banks sometimes reverse unauthorized withdrawals if notified quickly.
- Identify account title. Confirm whether the account was sole, joint, or POD/TOD. The bank can provide account documentation to the personal representative or to the probate court on request.
- Appoint a personal representative (if not already done). If no personal representative is in place, an interested person should open probate in the appropriate Montana county court and seek appointment. The personal representative has standing to recover estate assets.
- Demand return in writing. The personal representative typically sends a written demand for return of the money. Keep a copy of the demand letter and any responses.
- File a petition in probate or a civil lawsuit. If the person refuses to return the funds, the personal representative can petition the probate court for turnover or file a civil suit for conversion or unjust enrichment in district court.
- Consider criminal referral. If the withdrawals were intentional and unlawful, contact law enforcement to evaluate theft or similar charges. Criminal proceedings are separate from civil recovery but can support the estate’s claim.
Common defenses an heir might raise
- Joint-owner claim: The heir may claim the funds were a joint account and therefore belong to them.
- Gift or permission: The heir may argue the deceased gave permission to use funds or intended to gift the money.
- Authorized use: The heir may assert they were an authorized user or acting with apparent authority.
- Bank error or delay: The bank may have released funds because it had not been notified of the death.
Timing and deadlines
There are time limits for bringing civil claims (statutes of limitations). The exact deadline depends on the claim asserted (conversion, unjust enrichment, breach of fiduciary duty). For timing rules and filing procedures in probate or district court, consult the Montana statutes and local court rules. See Mont. Code Ann. Title 72 for probate deadlines and Title 27 for civil limitations: Title 72, Title 27.
When the bank might be liable
Sometimes the bank improperly pays out on an account after notice of death. If the bank failed to follow its own rules or reasonable diligence, it might bear some responsibility or be required to reverse the transaction. The personal representative should notify the bank in writing, provide a death certificate, and request reversal if payments were improper.
Helpful hints
- Act quickly — early notification to banks and prompt probate filing improve recovery chances.
- Gather documentation: death certificate, account statements, copies of checks, and any written permissions or beneficiary designations.
- If you are the personal representative, keep clear records and segregate estate funds from any personal funds.
- Ask the bank for a ledger or transaction history showing withdrawals after death; that evidence is often decisive.
- Consider a demand letter from an attorney — many people return funds after a formal demand.
- Be prepared to show whether the account had survivorship rights or was payable to a named beneficiary; those details can end a dispute quickly.
- If communications turn hostile or time runs short, consult a probate attorney to file appropriate court petitions or civil claims.
If you want, I can outline a sample demand letter to request return of withdrawn funds, list Montana probate courts by county, or suggest what documents a Montana probate attorney will likely request.