Disclaimer: I am not a lawyer. This article is informational only and does not constitute legal advice. If you face unauthorized charges against a parent’s estate in Florida, consult a qualified Florida probate attorney promptly.
Detailed Answer
When someone charges a deceased parent’s accounts or otherwise withdraws money or property without legal authority, Florida’s probate system provides civil remedies through the personal representative and the probate court and may trigger criminal liability. Below is a plain-language roadmap of how these situations are usually handled under Florida law and the typical steps you or the personal representative should take.
1. Who controls the response?
After death, the person appointed by the court as the personal representative (sometimes called executor) has the legal duty to gather the decedent’s assets, pay valid debts, and distribute remaining assets to beneficiaries. The personal representative is the right person to identify unauthorized charges, reject invalid creditor claims, and pursue recovery.
2. What counts as an “unauthorized charge”?
Examples include withdrawals made after death, transfers by a caregiver or family member with no legal authority, charges made by someone using a decedent’s credit card without permission, or payments the decedent never agreed to. If someone was acting under a Power of Attorney, that power ends on death; any post‑death transfers by an agent are unauthorized.
3. Immediate practical steps
- Preserve records: Collect bank and credit‑card statements, canceled checks, account logs, bills, and communications showing the unauthorized activity.
- Notify the personal representative: If you are not the personal representative, notify that person in writing and give copies of the evidence.
- Contact financial institutions: Ask banks to freeze or close accounts as appropriate and request written transaction histories. Many institutions can reverse or flag clearly fraudulent transactions if notified quickly.
- Preserve evidence of identity and dates: Keep copies of the death certificate and any documents showing the date of unauthorized activity (so it’s clear it occurred after death or outside legal authority).
4. What the personal representative can do in probate
The personal representative has legal tools to protect estate assets and to recover unauthorized withdrawals or transfers:
- Reject invalid claims: The representative should treat suspicious charges as not valid creditor claims and defend against any attempted claim by the person who made the charges.
- File an action to recover estate property: The representative can sue for conversion, breach of fiduciary duty, unjust enrichment, or money had and received to get funds returned to the estate.
- Seek surcharge or removal: If the personal representative or prior fiduciary (for example, someone appointed under a Power of Attorney or guardian) misapplied funds, the probate court can surcharge (financially charge) that person for losses and, in some cases, remove them from office.
- Refer for criminal prosecution: If the conduct appears fraudulent or criminal (theft, exploitation of an elderly person), the representative can and should refer the matter to law enforcement or the State Attorney.
5. Common legal claims and statutes to consider
Possible civil claims include conversion (wrongful taking), breach of fiduciary duty (if a caregiver, guardian, agent, or fiduciary misused assets), and unjust enrichment. Criminal statutes against exploitation or theft may also apply. Relevant Florida statutes include the Florida Probate Code (Chapter 733) governing personal representatives and estate administration, the Power of Attorney statutes (Chapter 709) governing agent authority (which ends at death), and statutes addressing abuse/exploitation of vulnerable adults (Chapter 825). You can review the texts here:
- Florida Probate Code (Chapter 733): https://www.flsenate.gov/Laws/Statutes/2024/Chapter733
- Power of Attorney (Chapter 709): https://www.flsenate.gov/Laws/Statutes/2024/Chapter709
- Abuse, Neglect, and Exploitation (Chapter 825): https://www.flsenate.gov/Laws/Statutes/2024/Chapter825
6. Timing and claims
The personal representative must act promptly. Florida probate has deadlines for presenting creditor claims and for court procedures. While some deadlines depend on the type of administration (formal vs. summary) and how creditors were notified, waiting too long can impair the estate’s ability to recover funds. That makes prompt investigation and action important.
7. If the person who made the charges is the personal representative or agent
If the person who made unauthorized withdrawals is serving as the personal representative, agent under a Power of Attorney, or guardian, the probate court can remove them, surcharge them for losses, and order turnover of the money. The estate can bring a civil action in probate court to force repayment. In addition, criminal charges may follow.
8. When beneficiaries want to act
Beneficiaries who suspect unauthorized charges should alert the personal representative and the probate court in writing. If the representative fails to act, beneficiaries may petition the probate court to compel action, to remove the representative, or to approve litigation to recover estate assets.
9. Criminal remedies
Unauthorized post‑death charges that involve deception or theft may be crimes, especially when the victim is an elderly or vulnerable person. The personal representative or family member should consider reporting the conduct to local law enforcement or Adult Protective Services for investigation.
Helpful Hints
- Act quickly. Banks and card companies often have limited windows to reverse unauthorized transactions.
- Collect and save all documentation (statements, emails, texts, receipts) showing who had access and when transactions occurred.
- Do not confront a suspected wrongdoer alone if you fear retaliation; consult an attorney first.
- If you are the personal representative: document every action you take to investigate and preserve estate assets — the court will want a record.
- If an agent used a Power of Attorney to take funds after death, note that authority ends at death — those transfers are typically unauthorized and recoverable.
- Consider both civil recovery and criminal referral — the remedies are different and can sometimes be pursued at the same time.
- Get legal help early. Probate attorneys know local procedures, required filings, and how to move the court to remove fiduciaries, surcharge wrongdoers, or recover funds.
If you need help identifying the right next step in a specific situation, a Florida probate attorney can evaluate the facts, explain deadlines for claims or court petitions, and represent the estate or beneficiaries in court.
Again, this is general information and not legal advice. Speak with a licensed Florida attorney to address the specific facts of your case.