Withdrawing Money From a Bank Account After Death in New York City… is that Legal?

Withdrawing money from a bank account after death is illegal, if you are not a joint owner of the bank account. When a person dies, banks freeze their accounts and generally do not allow third parties access to the bank account until proof is shown by the person seeking access to the bank account that the court has issued him letters testamentary or of administration.

However, 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 a family member or an individual withdraws money from the bank account after death of the owner, knowing that the owner is dead, this can be considered theft, and the penalty applicable to theft may apply. The proper procedure is to inform the bank of the owner’s death, 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), to use the money in the account to pay off creditors, and thereafter, distribute the proceeds to the beneficiaries or distributees.

What is the punishment for taking money from a deceased account

The penalty for using a dead person’s credit card can be significant. The court can discharge the executor and replace them with someone else, force them to return the money and take away their commissions. There can also be criminal a penalty, but most estate theft allegations do not escalate to criminal prosecution.

Civil Penalties

• Surcharge

  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 the executor to return property that he wrongfully transferred.

• Discharge of executor

  If the person caught using the dead person’s credit card is the executor or administrator, the judge of the Surrogate’s Court can discharge them from their position, taking away their 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.”^[1] 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 the executor improperly took funds from the estate, the court can order the executor to reimburse the estate for their attorneys’ fees. In some rare cases, the court can even order the executor to pay the beneficiaries’ attorneys’ fees.

• Waiver of commission

  An executor is entitled to a commission for their services. The amount of the commission is about three percent of the value of the estate. As a penalty for withdrawing money from a bank account after death, the court can take away the executor’s right to receive the commission.

Criminal Penalties

Anyone withdrawing money from a bank account after death can be subject to criminal prosecution for theft from the estate, even if they 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.

The alleged thief’s side of the story

Executors or others who are accused of stealing have their own side of the story. They say that they are paying for estate expenses, taking their legal fees, taking their share as a beneficiary, or comingling funds by mistake. Whether the executor is caught stealing and is now making an excuse or the executor did have a valid reason to transfer estate property to themselves is up to the court to decide, unless the executor makes a plea agreement with the District Attorney’s office.

The Penal Law

The estate is the owner of the property. When a person is withdrawing money from a bank account after death, he likely commits 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.” ^[2] 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.” ^[3]

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. An executor convicted of larceny can incur a sentence of up to twenty-five years in prison.

Restitution

The court can force the executor to return the property to the estate and pay restitution to the beneficiaries.

Examples

For example, Mother and Father are spouses. They have two children, Son and Daughter. Father had $100,000 in the bank when he died with no debts. The bank account was solely in Father’s name and did not designate any payable-on-death beneficiary nor was it a trust account. Mother, however, had Father’s debit card. Father died on April 1, 2021, but Mother did not inform the bank of Father’s death, and continued withdrawing money from the bank account via ATM until April 30, 2021, buying a car, clothes, and make-up. As of April 30, 2021, Father’s bank account only had $5,000 left. Mother then informed the bank of Father’s death. Father died without a will. Mother applied to be the administrator of Father’s 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 has the right to file a case against a person who withdraws money from the bank account after death. In this case, since Mother is the personal representative and she is also the one who illegally withdrew money from the bank account, it is unlikely that she will file a case against herself. Thus, her children will probably object to her accounting and simply surcharge her the amount due to the children. If the value of Father’s net estate is $100,000, Mother should have been entitled to $75,000 under EPTL § 4-1.1, while the three children would be entitled to $25,000, divided equally among them. Mother’s penalty for withdrawing money from the bank account after her husband’s death would be to pay her children the amount that they suffered.

Assuming the same facts above, but in this case, it was Father’s secretary in his business, Sarah, who withdrew money from the bank account after Father’s death. Mother, as administrator, can file an action for theft against Sarah and the penalty would depend on the amount taken.

Assuming the same facts above, but this time, Father’s bank account had a payable-on-death designation, nominating his daughter, Daughter, as his sole beneficiary, then Daughter has a cause of action against Mother for theft because it was Daughter who was completely entitled to the bank account upon Father’s death.

Lastly, assuming the same facts above, but this time, Mother was a joint owner of the bank account, then Mother’s acts of withdrawing money from the bank account after Father’s death is not illegal. As a joint owner, Mother had ownership over the bank account even after the death of Father because joint owners usually have survivorship rights where the death of one owner automatically vests to the other joint owner ownership of the entire property.

The penalty for withdrawing money from the bank account after death depends on the circumstances of the case. It would depend on the cause of action of the person aggrieved against the person who withdrew money and the amount involved. It could be a criminal case for theft, or a civil case for the return of the money plus damages.

If someone has withdrawn money from the bank account of a deceased loved one, immediately seek legal counsel to know your remedies in how to get the money back. We, at the law offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

[1] SCP § 711 – Suspension, modification or revocation of letters or removal for disqualification or misconduct

[2] NY EPTL § 11-1.1

[3] NY EPTL § 11-1.1

[4] NY EPTL § 11-1.6

[5] SCP § 719 – In what cases letters may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process