Detailed Answer — How Delaware law treats money taken from a deceased parent’s accounts
When a person dies, most assets that were only in that person’s name become part of the decedent’s estate and must be collected and distributed by the personal representative (executor or administrator) through probate. If an heir withdraws money from the decedent’s bank account or uses a credit card after the death without legal authority, Delaware law allows the estate to try to recover those funds through civil and, sometimes, criminal remedies.
Who legally owns the money after death?
- If an account was solely in the decedent’s name (no joint owner, no payable-on-death/transfer-on-death designation), the funds are estate property that the personal representative must collect and distribute under Delaware probate law. See Delaware Code, Title 12 (Probate and Trust) for the statutory framework governing administration: https://delcode.delaware.gov/title12/.
- If the account was a true joint account with right of survivorship (or had a valid POD/TOD beneficiary), the surviving joint owner or beneficiary will typically receive the funds outside probate. Whether the account was truly joint or merely allowed another person to access funds is fact-specific. Banks’ account records and beneficiary designations matter.
- Credit cards are different: a credit-card issuer looks to its contract and state law. Unauthorized post-death charges generally do not bind the estate, but the estate or card issuer may have claims against a person who charged or withdrew funds without permission.
What legal claims can the estate bring?
The personal representative can pursue several remedies to recover money:
- Civil claim for conversion or unjust enrichment. If an heir took or spent estate property without authorization, the personal representative can sue to recover the value of the funds.
- Probate accounting and surcharge. If the heir acted as a fiduciary (for example, was appointed temporary administrator or had some authority), the court can require an accounting and could surcharge (recover money from) the fiduciary for wrongful withdrawals.
- Turnover action in probate court. The personal representative can ask the probate court to order the person to return estate property.
- Criminal charges. In some situations the conduct could meet the elements of theft or embezzlement under Delaware criminal law. The estate can report suspected criminal wrongdoing to law enforcement, who may investigate. See Delaware criminal statutes at Title 11: https://delcode.delaware.gov/title11/.
What actually happens in practice?
Common practical steps and outcomes include:
- Bank response: once a bank receives a certified copy of the death certificate and a copy of the personal representative’s letters or probate documents, it will usually freeze the account and refuse further withdrawals until it knows who has authority. If an heir already withdrew funds, the bank may investigate whether the payment was authorized.
- Demand letter and negotiation: many recoveries start with a formal demand asking for return. If the person refuses, the personal representative may file suit in the appropriate court (probate or civil court) to get the money back.
- Court order: if the probate court finds the withdrawal improper, it can order repayment plus interest and possibly attorney fees. If the case involves criminal conduct, law enforcement or the prosecutor may bring charges separately.
- Limits and defenses: a person who reasonably believed they were authorized (for example, they were a named joint account holder or had explicit written permission) may have a defense. Also, if the money was spent and cannot be recovered (dissipated), the estate may still obtain a money judgment but collection can be difficult if the person lacks assets.
Time and proof
The personal representative must act within the timeframes required by Delaware probate practice to open the estate, inventory assets, and bring claims. Evidence from bank statements, account-holder agreements, beneficiary designations, and communications will be crucial to show the withdrawal was unauthorized. The estate should preserve all records and request transaction histories from financial institutions as soon as possible.
Relevant official resources: Delaware probate and estate administration rules and statutes are found under Delaware Code, Title 12 (Probate and Trust): https://delcode.delaware.gov/title12/. Criminal statutes (theft, embezzlement) appear under Title 11: https://delcode.delaware.gov/title11/.
Helpful Hints
- Act quickly. Obtain multiple certified copies of the death certificate and notify the decedent’s banks and credit-card companies immediately.
- Do not destroy or alter records. Keep bank statements, photos of checks, and any messages or emails about account access or permission.
- Freeze accounts where possible. Ask the bank to freeze the account pending probate and to provide a full transaction history.
- Identify whether accounts were joint or had POD/TOD designations. Those pass outside probate, so the estate may not have a claim to them.
- Contact the personal representative. If you are the personal representative, file for probate promptly and include disputed transactions in the estate inventory and administration plan.
- Send a written demand. Before filing suit, a formal demand for return of funds can sometimes resolve the issue without litigation.
- Consider both civil and criminal paths. If the withdrawal looks intentional and unlawful, report it to local law enforcement or the Delaware Attorney General’s Office after consulting counsel.
- Talk to a Delaware probate attorney. A lawyer can evaluate whether the withdrawal was wrongful, whether the estate can recover, and the best forum for recovery (probate court or civil court).
Next practical steps for someone facing this situation: gather the death certificate, account statements showing the withdrawals, any beneficiary or joint-account paperwork, and communications with the person who withdrew the money. Contact the bank for a transaction history and talk to a probate attorney about filing for administration and pursuing recovery.
Disclaimer: This article explains general principles of Delaware law and is for educational purposes only. It does not create an attorney-client relationship and is not legal advice. For advice about a specific situation, consult a licensed Delaware attorney who handles probate and estate matters.