What should I do if my brother has taken money out of my mother's account?

Question

José Manuel Alburquerque · Accepted Answer

The first step is to find out what the money was used for, because it makes a difference whether your mother gave it to him, whether your brother spent it on her or whether he kept it without her permission. If he spent it on her, he only has to account for it. If it was a gift, it is valid if she wanted to make it and understood what she was doing, although it may count when calculating the children's forced share (“legítima”). If he kept it without permission, he must pay it back and, after your mother's death, the heirs can claim it from him for the estate or deduct it from his share in the division. Money taken from the account after the death is a separate matter. Why he could withdraw it and what matters Your brother was able to withdraw the money as a joint holder of the account, as a person authorised on it or under a power of attorney from your mother. None of that made him the owner of the money, which still belonged to her if she was the one who had paid it in, for example from her pension. What matters is what he used it for: If he spent it on your mother, for example on the care home, carers or medicines, he does not have to pay anything back. But he must be able to account for it, especially if he was acting under a power of attorney or as an authorised person, because he is then obliged to render accounts, that is, to explain and justify what he did with the money. If your mother gave it to him, the gift is valid if she wanted to make it and understood what she was doing. Whoever says it was a gift has to prove it. Gifts made in the ten years before the death count when calculating the children's forced share. If, because of that gift, the estate is not enough to pay the others their forced share, they can ask for it to be reduced within four years of the death. If he kept it without your mother's permission or used it for his own benefit, he must pay it back. While your mother is alive, the money is hers and it is she who can ask him for an account or claim it back from him. If she is no longer in a position to do so, you can ask the court to put a support measure in place for her or inform the “Ministerio Fiscal”, the Public Prosecutor's Office, of her situation so that it can request one. How to claim it back When your mother dies, what your brother owed her becomes part of the estate, like any other right to payment she had. To recover it, it is advisable to follow these steps: Ask the bank, as heirs, for the statements of your mother's accounts. If the bank does not provide them, the judge can be asked in the proceedings to order them to be produced. Ask your brother in writing, for example by “burofax”, a certified letter with proof of content, to explain and justify the transactions and to repay whatever he cannot justify. Include what he owes in the inventory of the estate. In the division it can be set off against his share, so that he receives less. If he neither repays it nor acknowledges it, claim it in court, after first trying to reach an agreement as the law generally requires. If the court is asked to divide the estate and an inventory is drawn up in court, the dispute over whether that money is included can be resolved within the same proceedings. Time limits and other precautions In Catalonia, the general time limit for making a claim is ten years, but some claims have a time limit of three. That is why it is best not to wait and to put the claim on record in writing, which makes the time limit start again. In addition, for the “impuesto de sucesiones”, the Spanish inheritance tax, the tax authorities can add to the estate the money that left your mother's accounts in the year before her death, even if your brother has it. It is worth bearing this in mind before filing the return and when negotiating with him.