Colorado: Challenging a Sibling’s Use of a Deceased Parent’s Bank Account Before Administration | Colorado Probate

Detailed Answer — What you need to know under Colorado law

When someone dies, control of the deceased person’s property passes to the decedent’s estate, not automatically to any relative. In Colorado the probate laws governing estates are found in Title 15 (Probate and Decedents’ Estates). See Colorado statutes, Title 15: leg.colorado.gov — Probate and Decedents’ Estates (Title 15).

Key points you should understand right away:

Power of attorney ends at death. Any authority your sibling had as an agent under a power of attorney ended when your parent died.
Banks may treat accounts differently. A bank account titled solely in the decedent’s name typically becomes an estate asset. Accounts titled jointly with rights of survivorship or payable-on-death (POD/TOD) pass outside probate to the surviving co-owner or named payee. Ask the bank for its designation of the account.
An individual who is not a court-appointed personal representative (formerly “executor” or “administrator”) generally lacks authority to use estate funds for any purpose other than preserving and protecting the estate.

If your sibling is taking money from a solely decedent-held account to pay the decedent’s mortgage before being appointed by the probate court, that may be improper. What to do depends on the facts (account title, mortgage beneficiary, joint ownership, any written authorization, urgency of mortgage payments) but these are the common legal avenues:

Immediate practical steps

Contact the bank. Provide a copy of the death certificate and ask how the bank is classifying the account (sole, joint, POD, or other). If the sibling has been using the account, request an account transaction history and ask the bank whether it will place a hold or freeze pending court resolution.
Contact the mortgage company. Explain the situation and ask whether they will allow a short forbearance or accept payments from a third party while the estate is being administered. Mortgage companies sometimes accept temporary arrangements to avoid foreclosure.
Preserve evidence. Save bank statements, copies of withdrawals, texts, emails, canceled checks, and any written communications showing how funds were used.

Legal remedies in Colorado

Colorado law provides both probate-specific remedies and general civil/criminal options if someone misappropriates estate funds.

Petition the probate court to appoint a personal representative. Only an appointed personal representative has authority to collect estate assets, pay debts, and manage distributions. If you are worried the sibling will dissipate assets, you can ask the court for prompt appointment or for a temporary appointment. See Colorado probate resources: Colorado Judicial Branch — Probate Forms & Info.
Ask the court for emergency or temporary relief. If estate assets are at immediate risk, you can ask the probate court for a temporary restraining order, a temporary injunction, or emergency appointment of a temporary personal representative to protect assets while the court resolves who should be appointed.
Demand an accounting and file a surcharge claim in probate. If a personal representative has been appointed and you believe they misused funds, you may request an accounting and, if necessary, ask the court to surcharge (financially charge) the rep for losses caused by misuse.
Civil claims. If someone used estate money without authority, you may have a civil claim for conversion, unjust enrichment, or breach of fiduciary duty once someone is appointed to represent the estate.
Criminal reporting. If funds were stolen, you may report the conduct to law enforcement. Colorado criminal statutes address theft and related offenses (Title 18): leg.colorado.gov — Crimes (Title 18). Law enforcement and prosecutors decide whether criminal charges are appropriate.

How the court typically views interim use of funds

Courts generally expect estate property to be preserved. A family member who pays a mortgage using estate funds without court authority risks being required to repay the estate, provide an accounting, and possibly face civil liability. On the other hand, courts may allow reasonable actions taken to prevent immediate harm to estate property (for example, preventing foreclosure) if the person can show the action was necessary and reasonable. The safest path is to seek court approval before making or continuing withdrawals.

Timing and costs

Probate filings can take weeks to months. Emergency motions and temporary appointments can shorten the time for court action, but you should expect some delay. Litigation and contested probate matters increase costs and can reduce the estate’s value, so courts often favor solutions that protect assets quickly while minimizing expense.

Statutes and rules to consult

Relevant Colorado law lives in Title 15 (probate) and Title 18 (criminal offenses). For practical court forms and procedure, see the Colorado Judicial Branch probate pages: Colorado Title 15 — Probate and Decedents’ Estates and Colorado Title 18 — Crimes. For probate forms and local filing procedures see: Colorado Judicial Branch Probate Forms.

Bottom line: If the account was solely in your deceased parent’s name, your sibling generally has no legal right to use it after death unless the bank account was jointly owned or the probate court or lender authorized the payments. You can ask the bank to freeze the account, request quick court intervention to appoint a personal representative or temporary protector, seek an injunction, or—if funds were taken without authority—pursue civil claims or a criminal report. Acting promptly to preserve evidence and contacting the mortgage company and the bank will improve your options.

Helpful Hints

Immediately get copies of bank statements and the death certificate. Timely evidence is crucial.
Ask the bank whether the account is joint, POD/TOD, or solely in your parent’s name. Banks often freeze accounts when presented with a death certificate.
Contact the mortgage company and explain the situation; ask about a forbearance to prevent foreclosure while you sort out probate.
File a probate petition quickly to request appointment of a personal representative or an emergency temporary appointment to protect assets.
Consider a short, cooperative approach first—if possible, work with your sibling to document payments and preserve funds—then seek court approval for any continued use.
Keep records of any payments your sibling made from estate funds—dates, amounts, and purposes—because an appointed personal representative may need to account for those later.
Talk to a probate attorney early. A lawyer can draft court papers for rapid temporary relief, advise whether to pursue civil or criminal steps, and explain local courthouse practice.
Be mindful of costs: contested probate drains estate resources. Emergency hearings are possible, but weigh the estate’s value and the urgency of the threat to assets.

Disclaimer: This article is for general information only and does not create an attorney-client relationship. It is not legal advice. Laws change and each situation is different. For advice specific to your facts, consult a licensed Colorado attorney familiar with probate practice.