How the Probate Process Handles Unauthorized Charges to a Parent’s Estate in Wisconsin

Short answer: When someone makes unauthorized charges to a decedent’s estate — for example, a personal representative, agent under a power of attorney, caregiver, or family member spending estate assets without legal authority — the probate court and civil/criminal laws provide multiple remedies. These include reversing the charges, surcharging (financially holding) the responsible person, removing the personal representative, civil claims for breach of fiduciary duty or conversion, and possible criminal prosecution for theft. See Wisconsin probate law at Wis. Stat. ch. 859 and the theft statute at Wis. Stat. § 943.20. This page explains how these options work and what steps you should take.

Detailed answer — how the probate process addresses unauthorized charges

1. What counts as an unauthorized charge?

Unauthorized charges are withdrawals, transfers, or payments made from the decedent’s funds or assets that were not authorized by the decedent’s will, by the probate court, or by clear legal authority (for example, reasonable estate administration expenses approved by the court). Examples include:

• A personal representative paying family members or themselves for services that were never authorized;
• An agent under a power of attorney spending the principal’s money in ways that are not authorized by the POA or are for the agent’s own benefit;
• A caregiver or relative using estate bank accounts for personal purchases after death;
• Payments that exceed what the will or law permits (self-dealing, excessive commissions, or unauthorized gifts).

2. Probate basics that matter

When an estate enters probate, the court supervises the personal representative (sometimes called executor or administrator). Key probate steps that affect unauthorized charges include:

• Appointment of a personal representative who has a fiduciary duty to the estate and beneficiaries;
• Inventory and accountings that the personal representative must file with the court (so charges appear on the record);
• Notice to creditors and the public, giving an opportunity to file claims; and
• Court review and approval of distributions to beneficiaries after valid claims and expenses are paid.

For an overview of Wisconsin’s probate administration rules, see Wis. Stat. ch. 859.

3. How the court resolves unauthorized charges

The court and the interested parties have several tools:

• Objection to the accounting: Beneficiaries or interested persons can object to the personal representative’s inventory or accounting and point out unauthorized charges. The court will hold a hearing and can disallow or reverse improper transactions.
• Surcharge: If the personal representative improperly spent or misapplied assets, the court can surcharge (make them repay) the estate for the loss and any consequential damages.
• Removal of the personal representative: The court can remove a personal representative for misconduct, incapacity, or failure to perform duties, and appoint a successor. Removal is an appropriate remedy when misuse of funds is serious.
• Civil claims: Family or beneficiaries can file civil actions for breach of fiduciary duty, conversion, unjust enrichment, or restitution against the person who made unauthorized charges.
• Criminal referral: If the conduct amounts to theft or fraud, you can report it to law enforcement; prosecutors may pursue criminal charges under criminal statutes such as the theft statute, see Wis. Stat. § 943.20.

4. Special issues — agents under powers of attorney and pre-death misuse

If the unauthorized charges happened before death by someone acting under a power of attorney or as a caregiver, you can bring actions against that person in civil court and present evidence in probate. The probate court can still consider those transfers when settling the estate. In suspected elder financial abuse, notify Adult Protective Services and law enforcement.

5. Evidence and tracing funds

To succeed, you will typically need documentation: bank statements, cancelled checks, receipts, invoices, emails or text messages, the court-filed inventory and accounting, photos of assets, and testimony. In many cases the court will order an accounting and may allow forensic accounting to trace estate assets.

6. Timing and deadlines

Deadlines in probate and for creditor claims vary by situation and by statute. Prompt action is important: file objections or petitions as soon as you discover suspect charges. See the probate administration provisions at Wis. Stat. ch. 859 for deadlines and notice requirements. If you expect a criminal referral, contact law enforcement promptly so evidence is preserved.

Practical step-by-step checklist (what you should do)

1. Preserve documents: Save bank and credit card statements, bills, and correspondence. Make copies before submitting originals to the court.
2. Request the estate accounting and inventory: Ask the personal representative or the probate court clerk for the estate’s filed inventory and accounts.
3. Compare transactions: Mark charges that look unauthorized and note dates, amounts, and payees.
4. File a formal objection or petition: If you are a beneficiary or interested person, file an objection to the accounting or a petition to surcharge/remove the personal representative. The probate clerk can tell you filing procedures.
5. Consider mediation or negotiation: For smaller disputes, informal resolution may be faster and less expensive than litigation.
6. Consider civil or criminal action: If the unauthorized charges are significant or clearly criminal, contact local law enforcement and consider a civil lawsuit for recovery.
7. Get legal help: Probate and fiduciary matters raise technical issues (statutory duties, burden of proof, appropriate remedies). Consider consulting an attorney experienced in Wisconsin probate and estate litigation.

Helpful hints

• Act quickly. Probate deadlines and the risk of dissipated assets make speed important.
• Carefully read probate filings. The inventory and accounting are the central records where unauthorized charges will show up.
• Document chains of custody. Notes about who had access to accounts, keys, or safe-deposit boxes will help show who could have made the charges.
• Ask whether the personal representative posted a bond. A bond can provide recovery if the representative misappropriated funds. See the probate administration chapter at Wis. Stat. ch. 859.
• If the person charged estate funds as compensation (caregiving, services), check whether prior court approval or clear contract terms exist.
• For suspected elder abuse or theft before death, notify Adult Protective Services and law enforcement immediately.

Where to look for Wisconsin law and forms: The Wisconsin Legislature maintains the statutes online. Key resources include the probate administration chapter at Wis. Stat. ch. 859 and the criminal theft statute at Wis. Stat. § 943.20. County probate courts also publish local forms and procedures; contact the probate clerk in the county where the estate is filed.

When to consult an attorney

Consider consulting an attorney if:

• The alleged unauthorized charges are large or complex;
• The personal representative resists providing records;
• You need to file objections, petitions for surcharge, or removal; or
• You want to pursue civil claims or coordinate with a criminal investigation.

Disclaimer: This article provides general information about Wisconsin probate and is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, contact a licensed Wisconsin attorney.