What to do if someone is using a deceased parent’s bank account to pay the mortgage before an administrator is appointed

Disclaimer: I am not a lawyer. This article explains general West Virginia probate concepts and common remedies. It is educational only and not legal advice. Consult a West Virginia probate or estate attorney about your specific situation.

Detailed Answer — how West Virginia law treats use of a decedent’s bank account before appointment of an administrator

When a person dies, their assets do not automatically belong to any family member. In West Virginia, administration of the deceased person’s estate is governed by the probate statutes in Chapter 44 of the West Virginia Code. The probate court appoints an executor or administrator to collect the decedent’s assets, pay debts (including mortgage debts), and distribute any remaining property to heirs or beneficiaries. See the West Virginia Code, Chapter 44: https://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chapter=44, and the West Virginia Courts probate information: https://www.courtswv.gov/lower-courts/probate/.

If a sibling starts using the deceased parent’s bank account to make mortgage payments before anyone is officially appointed administrator, the sibling generally has no legal authority to spend or transfer the decedent’s funds unless the bank has some written power that survives death (rare) or the funds are in a payable-on-death or joint account with surviving joint-owner rights. Normally, banks will freeze or flag accounts when they learn of a death and will require a certified copy of the death certificate plus letters of administration before releasing money. If the sibling withdrew funds without court authority, heirs can challenge those withdrawals.

Common legal issues and possible remedies

• Unauthorized withdrawals / conversion: Taking money from a decedent’s account without authority may be treated as wrongful taking (conversion) or unjust enrichment. You can ask the probate court to require the person to return the funds or to account for how they were used.
• Emergency relief / temporary administrator: If immediate action is necessary (for example, funds are disappearing or the estate is at risk of loss), you can petition the probate court to appoint a temporary or emergency administrator or to issue an injunction to stop further transfers. The court has authority to protect estate assets pending formal administration. See WV probate procedures in Chapter 44: WV Code Chapter 44.
• Accounting and surcharge: After appointment, an administrator or the court can require an accounting of estate assets. If a person in possession of estate funds improperly used them, the administrator or heirs may ask the court to surcharge that person (order them to repay amounts improperly taken) or to impose a constructive trust for the benefit of the estate.
• Negotiation vs. litigation: If the sibling can show payments benefited the estate (for example, they kept the mortgage current and prevented foreclosure), the court may consider that fact when resolving claims. Still, the proper route is administration and court oversight rather than unilateral withdrawals.

Practical steps you can take now (before or while seeking an administrator)

1. Preserve evidence: Collect copies or photographs of bank statements, withdrawal slips, canceled checks, mortgage payment records, death certificate, and any written communications. Document dates, amounts, and the sibling’s explanations.
2. Notify the bank: Contact the bank, explain the account holder died, and ask whether the bank has frozen the account or requires letters of administration. Banks often will not release money without documentation. If the sibling is withdrawing funds, tell the bank you believe the withdrawals were unauthorized and ask for the bank’s process for handling disputed withdrawals.
3. Petition for appointment: Any heir or interested party may petition the local probate court to open an estate and appoint an administrator or personal representative. The appointed representative has the legal authority to control estate assets and resolve improper withdrawals. See West Virginia probate court resources: https://www.courtswv.gov/lower-courts/probate/.
4. Ask the court for interim relief if needed: If funds are being dissipated, your petition can request temporary relief such as a temporary administrator, a restraining order, or an order requiring the sibling to preserve or return funds.
5. Talk to a probate attorney: A lawyer can help you draft and file the petition, seek emergency relief, and pursue claims for conversion or unjust enrichment if the sibling refuses to return improperly used funds. The West Virginia State Bar has resources to find a lawyer: https://www.wvbar.org/.

Typical court outcomes

The probate court may:

• appoint an administrator (possibly a temporary one),
• order an accounting of withdrawals,
• require repayment or impose a surcharge if funds were taken improperly,
• approve offsets if the sibling’s payments clearly benefited the estate and the court finds equity in allowing some credit, or
• deny relief if the sibling had lawful authority (rare) or the account was jointly owned or designated outside probate.

Helpful Hints

• Act quickly: probate courts can grant temporary relief when estate assets are at risk. Gathering documents and filing a petition early strengthens your position.
• Check how the account is titled: joint accounts or payable-on-death designations can change who gets access. Provide the bank with the death certificate and ask how the account is handled.
• Don’t try to forcibly remove the sibling or seize the account yourself. Let the court handle disputes to avoid claims of interference or additional legal trouble.
• If the sibling argues they were preventing foreclosure, gather mortgage statements and foreclosure notices. The court will consider whether their actions actually benefited the estate.
• Keep communications documented and polite. Send written requests for accounting or explanations and keep copies.
• Be prepared to petition the probate court in the county where your parent lived. The court’s probate clerk can explain the local filing procedures: West Virginia Judiciary.
• Consider mediation if relationships are important and the sibling is willing. Mediation can resolve disputes faster and less expensively than litigation.

If you want personalized next steps, contact a West Virginia probate attorney early. They can review your documents, help you petition the court for appointment or emergency relief, and advise whether civil claims like conversion or unjust enrichment apply.