WA Accessing bank funds of a deceased person.

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Phanelope

Well-Known Member
11 February 2018
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hi
My mother has recently passed and she has named me executor of her will and me and my two siblings as beneficiaries. Prior to my mum passing I had enduring power of attorney and was able to access all her accounts, had access to a key card, and access to her online banking. My siblings also had access and we made all of mums financial decisions together.

I am still able to access her accounts as I have not informed the bank of her death, So I was wondering if there are any legal implications for me to simply pay all of her debts and funeral expenses out of her account and then give the remainder to my siblings without having to apply for probate, and prior to notifying the bank mum has passed? My siblings are in agreement (in fact they are asking me to do it) so is there anyone left to make a complaint or press charges against me for accessing her accounts?

I am aware I can go into the bank with the will and her death certificate and request funds, but I don’t want to do this unless I know I have to, as they may make me go through probate which will take months. It just seems so much quicker and easier to do it this way.
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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A power of attorney ceases to have effect when the donor dies, and you should inform the bank. There may ultimately be no harm done, but having the position of an attorney is a position of trust - to both the donor and to act in a legal manner. Continuing to operate the bank account is a breach of your duty. It may be quicker and easier, but it is not legal. If something goes wrong, you may be held personally liable.

Most banks have a published level at below which they don't require probate. If you search their site under 'deceased account holders' or similar, you should find their information.
 

Phanelope

Well-Known Member
11 February 2018
16
0
71
I can’t inform the bank as yet as I need a death certificate. Do you know what kind of legal implications there are? Is it only the claimants to her estate that can take action against me or is it actually a criminal offence?
 

Rob Legat - SBPL

Lawyer
LawTap Verified
16 February 2017
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Gold Coast, Queensland
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I don't know what the WA law has to say about it, but failure to act in accordance with the requirements of an attorney could be seen as an offence against public standards. Being an attorney is a position of trust and duty. Acting contrary to what's required may be considered an undermining of that position.

Odds are that this would only get raised if a claimant to the estate raises a fuss - particularly if they raise it towards the bank and, to cover themselves, they point the finger at you.

However, that's not really the point. When you're in the position you're in (ie an attorney), you shouldn't do things because they're simply expedient, or not do things because they are difficult or long. An attorney needs to make sure they do the legally correct thing.
 

Phanelope

Well-Known Member
11 February 2018
16
0
71
I can see my mother right now saying “ geez girl, why do you always have to go about things the right way?” My mum wasn’t particularly fond of the law, so I actually don’t feel any guilt about not doing the “proper” thing, my only concern is legal implications to myself. I will take your advice though, the more I look into it the more complex it gets and I wouldn’t want to miss anything.