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What do I do?
My father passed away without a will. I was going to file for executor but he has not filed taxes since 2008 and it was going to be an absolute mess.He gave me one of his debit cards months before he died to use to get him things he needed and frequently let me borrow money as I needed it. I always paid him back.Well, the other day I got a flat tire and I used my dads card a month after his death to pay for a new tire. My aunt who is also not executor got his bank statement and saw where I took the money out and is asking a ton of questions. Can I be arrested for this??? Should I just pay it back or forfeit the money I would get if it went to probate. I didnt know it was illegal and I just had a baby so I am completely freaking out
Asked on October 3, 2019 under Estate Planning, North Carolina
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 2 years ago | Contributor
It is not likely (but not impossible) that you would face criminal charges, since criminal charges require a criminal intent or "mens rea." If you did not know this was illegal (which it is) and were simply continuing to do what you had been doing with his permission before he died, it is unlikely that you can be shown to have had such a criminal intent.
But since it is illegal and you had no right to the money (once your father passed away, any permission he gave you to use the money ceased; and the money was no longer "his" anymore, but rather belonged to his "estate") you do have to repay it. You don't have to forfeit your share of his estate--you simply have to repay this amount.
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