You cannot use your mom’s debit card after she dies. Instead, you should notify the bank of her death and apply to the Surrogate’s Court for approval to access her assets.
After you notify the bank, they will freeze her accounts. Using the accounts without notifying the bank can be considered fraud. Banks do not allow you to access your mom’s account until after you show proof that the court has issued you letters testamentary or of administration.
After you get court authorization, you will be able to marshall the bank account. But you will still not be able to use your mom’s debit card for your personal needs. Rather, you will have to either follow her will or your state’s intestacy law in order to distribute the proceeds of her bank account to her rightful heirs, which can include yourself depending on the estate.
There are instances when the bank account is on auto-debit for certain items like utilities, subscriptions, and mortgage payments. There is no fraud or theft in debiting the account for these pre-authorized items, especially when they have not received any proof that the bank account owner is dead.
When you use your mom’s debit card after she dies, this can be considered fraud and theft, and the penalty applicable to those crimes may apply. It is true that she is not here to press charges, but the other heirs might.
The proper procedure is to inform the bank of your mother’s death and to apply for a court order as executor or administrator to access the account (if the account is solely owned by the deceased with no payable on death designation), and to use the money in the account to pay off creditors, and thereafter, distribute the proceeds to the beneficiaries or distributees.
The penalty for using your mom’s debit card after she dies can be significant. If you are nominated as the executor in the will, the court can deny your executor appointment and deny your executor commissions. There can also be criminal a penalty, but most estate theft allegations do not escalate to criminal prosecution.
If you are in a situation where you used your mom’s debit card after she died, it would be a good idea to seek legal counsel to know your next steps. If you did not use the debit card and instead would like to apply to be in charge of her estate, so that the court would grant you the legal power to access your mom’s account, you would also need to contact an attorney. We at the law offices of Albert Goodwin, are here for you. You can call us at 718-509-9774 or send us an email at email@example.com.
Surcharge. If you are the executor, the other beneficiaries will ask the court to surcharge the executor who they are claiming took more than they are entitled to. If the executor is one of the beneficiaries, then the court can surcharge the executor’s share of the estate, giving some or all of the executor’s share to the other beneficiaries.
Turnover. Beneficiaries can bring a proceeding for Discovery and Turnover. If the court grants the turnover, then it will force you to return the money you withdrew from your mom’s debit card.
Discharge of executor. If you are the executor or administrator of your mom’s estate, the judge of the Surrogate’s Court can discharge you from your position, taking away your power to manage the estate. The judge can discharge and remove the executor “by reason of his having wasted or improperly applied the assets of the estate.” The court can appoint someone else as the executor instead, typically one of the beneficiaries who brought the proceeding to remove the misbehaving executor.
Attorneys’ fees. Executors use estate funds for their defense. If the court finds that you improperly withdrew funds from your mom’s debit card, the court can order you to reimburse the estate for their attorneys’ fees. In some rare cases, the court can even order you to pay the beneficiaries’ attorneys’ fees.
Waiver of commission. If you are an executor, you are entitled to a commission for your services. The amount of the commission is about three percent of the value of the estate. If you use your mom’s debit card after she dies, the court can take away your right to receive the commission.
If you use your mom’s debit card after she dies, you can be subject to criminal prosecution for theft from the estate, even if you are one of the beneficiaries. Taking more than you are entitled to by law can be interpreted as stealing from the other beneficiaries of the estate. Everyone has their side of the story, and it could be that the beneficiaries’ allegations of theft are unfounded. But if the District Attorney’s office decides to bring charges, then the potential penalties can be significant.
Your side of the story. You will probably say that you did not know that you cannot use your mom’s debit card after she dies, or you will say that you were paying for estate expenses such as the funeral, or taking your share as a beneficiary, or comingling funds by mistake. Whether or not the excuse will work is up to the court to decide, unless you will make a plea agreement with the District Attorney’s office.
The Penal Law. The estate is the owner of the property. When you are using your mom’s debit card after she dies, you likely commit larceny. New York’s Penal Law (the Criminal Law) states that “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.”  New York Penal Law continues to say that “Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed … by conduct heretofore defined or known as common law larceny by trespassory taking, common-law larceny by trick, embezzlement, or obtaining property by false pretenses.” 
Sentencing guidelines. New York Penal Law 155 describes the sentencing guidelines for someone using a dead person’s credit card. The sentence depends on the amount that the executor steals. A person convicted of larceny can incur a sentence of up to twenty-five years in prison.
|Amount Stolen||Type of Grand Larceny||Section of Penal Code||Felony Class||Penalty|
|In excess of $1,000 but not more than $3,000||Fourth Degree||PL 155.30(1)||Class E Felony||up to 4 years in prison|
|In excess of $3,000 but not greater than $50,000||Third Degree||PL 155.35||Class D Felony||up to 7 years in prison|
|In excess of $50,000 but is not more than $1 million||Second Degree||PL 155.40(1)||Class C Felony||up to 15 years in prison|
|In excess of $1 million||First Degree||PL 155.42||Class B Felony||up to 25 years in prison|
Restitution. The court can force you to return the money to the estate and pay restitution to the beneficiaries.
Examples of using mom’s debit card after she dies
For example, Mom and Dad are spouses. They have two children, Son and Daughter. Mom had $100,000 in the bank when she died with no debts. The bank account was solely in Mom’s name and did not designate any payable-on-death beneficiary nor was it a trust account. Daughter had Mom’s debit card. Mom died on April 1, but Daughter did not inform the bank of Mom’s death, and continued using the debit card until April 30, buying a car, clothes, and make-up. As of April 30, Mom’s bank account only had $5,000 left. Daughter then informed the bank of Mom’s death. Mom died without a will. Daughter applied to be the administrator of Mom estate, and since the net estate was less than $5,000, Mother received everything, leaving nothing for her children.
Generally, it is the personal representative of the estate who would have the right to file a case against you if you used your mom’s debit card after she died. In this case, since Daughter is the personal representative and she is also the one who used Mom’s debit card, she will not file a case against herself. What will happen instead is the Son will compel her to file an accounting of the estate, and will probably object to her accounting and ask the court to surcharge her the amount due to him.
Assuming the same facts above, but this time, Mom’s bank account had a payable-on-death designation, nominating Son as his sole beneficiary, then Son has a cause of action against Daughter for theft because it was Son who was completely entitled to the bank account upon Mom’s death.
Lastly, assuming the same facts above, but this time, Daughter was a joint owner of the bank account, then Daughter’s acts of using Mom’s debit card after she dies is generally not illegal. As a joint owner, Daughter had ownership over the bank account even after Mom’s death, because joint owners usually have survivorship rights where the death of one owner automatically vests to the other joint owner the entire property.
If you are in a situation where you used your mom’s debit card after she died, it would be a good idea to seek legal counsel to know your next steps. If you did not use the debit card and instead would like to apply to be in charge of her estate, so that the court would grant you the legal power to access your mom’s account, you would also need to contact an attorney. We at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.