Your brother took money from your mother's account: get it back
Last updated 2026-09-28 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
Require your brother to account for the money and to return to the estate whatever he cannot justify. If he was an authorised user or attorney, article 1720 of the Código Civil obliges him to account for every transaction, and the five years to claim run from when he ceased to act, normally your mother's death. The claim goes before the sección civil del Tribunal de Instancia (the civil section of the first-instance court), after an attempt to negotiate.
Your mother died in February, aged eighty-seven, in a care home in Valladolid. Your older brother, who lived ten minutes away, had been an authorised user on her account since she was diagnosed with Alzheimer's four years ago, and he was the one who managed everything. When you ask for the balance certificate for the estate you discover that 3,200 euros are left, although your mother had more than 90,000 after selling the flat in her village in 2021. The few statements you have obtained show cash withdrawals of 600 euros almost every week and two transfers of 15,000 euros to an account you do not recognise. Two days after the funeral another 2,500 euros left the account with your mother's card. Your brother says it all went on the care home and the carer, that the rest was a gift from her and that, as an authorised user, he was entitled to do it.
The case, in five lines
- What is brought
- Action for an account against the son who acted as agent (article 1720 of the Código Civil), with an order to return to the comunidad hereditaria (the undivided estate) whatever is not justified, plus interest; an action to recover what was withdrawn after the death; and, in the alternative, collation in the division of whatever is found to have been a gift (article 1035).
- Before which court
- The sección civil del Tribunal de Instancia (the civil section of the first-instance court) of your mother's last domicile (article 52.1, rules 2 and 4, of the Ley de Enjuiciamiento Civil), through the juicio verbal (oral proceedings) up to 15,000 euros and the juicio ordinario (ordinary proceedings) above that. If judicial division of the estate is already under way, whether the money is included is argued in the inventory (article 794.4). Before suing, the attempt to negotiate required by article 5 of Ley Orgánica 1/2025 is compulsory.
- Deadline
- A five year limitation period (article 1964.2 of the Código Civil). For the account, it runs from the day your brother ceased to act (article 1972), which is your mother's death if the authorisation or the power of attorney was still in force (article 1732). For what was taken after the death, from each withdrawal. Being a limitation period, it is interrupted by an out of court demand (article 1973) and by a request to negotiate (article 7 of Ley Orgánica 1/2025).
- Who can bring it
- Any co-heir, acting for the benefit of the comunidad hereditaria and seeking the return of the money to the estate, not payment of his or her own share. The claim is brought against the brother who disposed of the funds and, where relevant, whoever received them. If the bank paid a mere authorised user when it already knew of the death, the bank's liability is examined as well.
- Financial risk
- If the claim is dismissed entirely, costs follow the loser pays rule (article 394 of the Ley de Enjuiciamiento Civil); if it succeeds in part, each side pays its own. The typical risk is claiming the full amount without deducting your mother's expenses: your brother justifies the care home and the carer and the award shrinks to a fraction. The forensic accounting report is paid up front by the party proposing it, and the case usually breaks the family relationship.
Joint holder or authorised user: neither owns the balance
Your brother's first answer will almost always be the same: the account was his too. The Tribunal Supremo (the Supreme Court) has held for decades that joint and several holding of a deposit only gives each holder, as against the bank, the power to dispose of the balance, but does not decide who owns the money. Ownership depends on the internal relationship between the holders and, above all, on who paid the funds in. The fact that the bank let him take it out does not mean he was entitled to keep it.
If your brother was listed as an authorised user, his position is weaker still: he holds nothing, he is an agent operating on your mother's behalf, and everything he withdraws he receives for her. Nor is a notarial power of attorney needed to reach that conclusion. Article 1710 of the Código Civil accepts an implied mandate, so the son who ran his mother's finances with her card and her PIN, and with her knowledge, is bound by the same obligations as a formal attorney.
Where the case becomes harder is the account into which both of them paid money. Article 393 presumes the shares of co-owners to be equal unless the contrary is proved, and that presumption works in your brother's favour: without proof, he keeps half. That is why the origin of the funds decides the matter. If the only money going into the account was your mother's pension and the price of the sale of her flat, the statements show it and the presumption falls away.
Whoever handled your mother's money must justify every euro
Article 1720 of the Código Civil obliges every agent to account for his dealings and to hand over to the principal everything received under the mandate. Once your mother has died, that right passes to her heirs under article 661, and any one of them may demand the account for the benefit of the comunidad hereditaria. Once it is shown that your brother controlled the account, it is no longer for you to prove what the money was spent on: it is for him to justify it, transaction by transaction and with documents.
Giving an account does not mean saying it was all for Mum. The courts require detailed accounts, with income, expenditure and receipts, and whatever is not justified is paid back. What is deducted is what was genuinely spent in your mother's interest: the care home, the carer, the pharmacy, the service charges or the utilities of her home. And article 1724 adds a rule that hardly anyone claims: the agent owes interest on sums he applied to his own use from the day he did so, with no prior demand needed.
The mandate does not outlive the principal. Article 1732 ends it on the principal's death, and also when a representative curatorship is set up in her favour, save for what is provided for preventive mandates. From the death onwards, the bank authorisation and the power of attorney are extinguished, and every later withdrawal is made without any title. Article 1738 only protects what the agent did while unaware of the death, and only as regards third parties in good faith: the son who goes to the cash machine two days after the funeral was not unaware of it.
Five years to claim, but not from each withdrawal
The claim is a personal one with no special period, so it is time-barred after the five years of article 1964.2 of the Código Civil. The key is the starting point. Article 1972 provides that the limitation period for claims to demand an account runs from the day on which those who had to give it ceased to act. If your brother's mandate lasted until your mother's death, the five years are counted from the death, and withdrawals made seven or eight years ago are still part of the account he is required to give.
Your brother will argue that each withdrawal opened its own period, and that argument only succeeds where there was no mandate at all. What was taken after the death is indeed counted from each withdrawal, because there is no office that ends: there is a taking of funds belonging to the comunidad hereditaria. And there is a framing trap: if the claim is brought as plain non-contractual liability under article 1902, article 1968 cuts the period to one year from when you found out. How the claim is framed decides which period applies.
Unlike claims to annul a will, this is a limitation period and not a lapse period, and it can be interrupted. Article 1973 accepts an out of court demand as a ground, and article 7 of Ley Orgánica 1/2025 gives the same effect to a request to negotiate that properly defines its subject matter, from the date on which the attempt to deliver it is recorded. If the other side does not reply in writing within thirty calendar days, the period starts again, and there is one year from receipt to file the claim with the requirement met. If your mother had Catalan civil status, the general period there is ten years.
If he says it was a gift, the burden of proof is his
The second classic defence is the gift: Mum gave it to me. A gift is not presumed, and whoever relies on it must prove the intention to give. Article 632 allows money to be given by word of mouth, but it requires simultaneous delivery, and what is argued about is never the delivery, which appears on the statement, but whether your mother intended to make a gift and was capable of intending it. If at that time she had documented cognitive decline, the medical records carry more weight than any family witness.
If your brother manages to prove the gift, the money does not vanish from the estate's accounts. Article 1035 obliges a forced heir who shares the estate with others to bring into it whatever he received from the deceased during her lifetime by gift or other gratuitous title, so that it is counted in the legítimas (the forced shares) and in the division. He does not pay it back in cash: it is deducted from his share. He only escapes collation if your mother expressly exempted him, and not even then if the gift is excessive, which is a matter for the reduction claim and has its own guide.
That is why the claim is built on two levels. As the main request, repayment of whatever he cannot justify as agent; in the alternative, should the court find there was a gift, its inclusion in the division. That way, whatever the judge concludes about your mother's wishes, the money counts. What must not happen is mixing concepts: the care home or carer expenses are not gifts to your brother but your mother's own expenses, and they enter neither the repayment nor the collation.
What left the account after the death already belonged to all the heirs
From the death, the balance stops being your mother's and passes to the comunidad hereditaria, which belongs to all the heirs in common and to none of them individually until the division: article 1068 only gives each heir exclusive ownership of what is allotted to him or her on division. The brother who empties the account after the funeral is not collecting his share in advance, he is disposing of common property without the others' consent. That is why what is claimed from him is the return of the funds to the estate, not payment of your percentage to you.
That conduct also has a consequence many people are unaware of. Article 1002 provides that heirs who have taken or concealed any items belonging to the estate lose the power to renounce it and are treated as having accepted it outright. Under the common Código Civil they do not lose their share, but they answer for their mother's debts with their own assets as well. If there are debts, a loan or an outstanding guarantee, that article completely changes the balance of the negotiation.
If judicial division is already under way, as explained in the guide on the sibling who blocks the division, the money is entered in the inventory as a claim of the estate against your brother, and if he objects, article 794.4 of the Ley de Enjuiciamiento Civil requires the dispute to be decided at a hearing following the juicio verbal route. If the division has already been signed without that money, article 1079 does not annul it, but allows it to be completed with what was left out. And if your brother was only an authorised user and the bank paid him when it already knew of the death, the bank's liability is also worth examining.
Criminal complaint and prior negotiation: what opens doors and what closes them
Many clients arrive wanting to report it to the police. Article 268 of the Código Penal (the Criminal Code) exempts ascendants, descendants and siblings from criminal liability, leaving only civil liability, for property offences committed against one another without violence or intimidation. But since July 2015 the exemption does not apply where there is abuse of the victim's vulnerability on grounds of age or disability. The son who disposed of the money of an eighty-seven year old mother with Alzheimer's may be liable for misappropriation or breach of trust; the one who emptied the account after the death, to his siblings' detriment, normally is not.
The criminal route has real advantages: the sección de instrucción del Tribunal de Instancia (the investigating section of the first-instance court) can obtain the bank information directly and order measures over the suspect's assets. But while criminal proceedings on the same facts are pending, the civil case does not reach judgment, and a complaint dismissed because of the article 268 exemption costs months without moving the money. The decision is taken with the medical records in front of you: if your mother's vulnerability can be proved, a complaint is a serious option; if not, the route is civil.
On the civil route there is a compulsory preliminary step. Article 5 of Ley Orgánica 1/2025 requires an attempt at an appropriate means of dispute resolution before any declaratory proceedings and the special proceedings of book IV of the Ley de Enjuiciamiento Civil, and a claim between co-heirs, including judicial division, is not among the exceptions. It is not needed to seek preliminary disclosure or interim measures before the claim. The subject of the negotiation must match that of the lawsuit, so the proposal already carries the table of withdrawals and the figure, and whoever refuses it without good reason risks not recovering costs even if he wins.
How we run the case, step by step
- 1
Ask the bank for the full history of the accounts
With the death certificate, the certificate of last wills and the document proving heirship, each bank is asked for the certificate of holders and authorised users with their dates, the statements for the years before and after the death, and the vouchers for every withdrawal. Article 3 of Ley Orgánica 3/2018 grants heirs access to the deceased's financial data.
- 2
Establish on what basis your brother was operating
A copy of the power of attorney is obtained if there was one, we check whether he was a joint holder or an authorised user and since when, and your mother's medical records for those years are gathered. Those three pieces decide whether there was a mandate, whether a gift is arguable and whether the criminal route is open.
- 3
Reconstruct the money and refine the figure
A forensic accountant sets out every withdrawal, identifies the destination accounts and deducts your mother's proven expenses. The resulting figure is the one claimed, with interest under article 1724 from each use for his own purposes.
- 4
Demand the account and open negotiations
Your brother is sent, by a method that proves delivery, a demand for an account with the table of withdrawals and a specific proposal to negotiate. That document interrupts the limitation period, meets the requirement of article 5 of Ley Orgánica 1/2025 and forces him to commit to his version in writing.
- 5
Sue before the sección civil del Tribunal de Instancia
Failing agreement, the claim seeks an account and the return to the comunidad hereditaria of whatever is not justified, with interest, and in the alternative the collation of whatever is found to be a gift. If there is a risk he will empty his own accounts, a preventive attachment is requested. If judicial division is already under way, the argument is taken to the inventory.
- 6
Collect through the division
With the judgment, the sum is returned to the estate or charged to your brother's share as money already received. The latter lets you collect even if he has no cash: he receives less of the flat or of the rest of the estate, and the others receive more.
The evidence that decides the case
- The bank certificate of holders, authorised users and powers of attorney on each account, with start and end dates: it establishes the basis on which your brother operated and whether he kept operating after the death.
- The vouchers for each withdrawal: transfer orders showing the destination account, counter withdrawal slips bearing the signature of whoever withdrew, and cash machine transactions with date, time and place.
- Your mother's medical records and her dependency assessment: they prove she could neither go to the bank nor consent, they dismantle the gift argument and they open the exception in article 268 of the Código Penal.
- The contract and receipts for the care home and the carer, with how they were paid: if they were collected by direct debit, the cash withdrawals cannot be justified by those same expenses.
- The forensic accounting report that reconstructs the flows, identifies where the funds went and deducts legitimate expenses: it gives the judge a figure he can adopt.
- Your brother's messages about the money and the evidence of the carer or the care home staff about who managed the accounts and what state your mother was in.
What closes the door
- Signing the acceptance and division, or the split of the balance the bank proposes, with a clause stating that nothing further remains to be claimed. Article 1079 allows a division to be completed with omitted assets, but it does not undo an express waiver.
- Claiming everything that left the account without deducting the care home, the carer and the pharmacy: your brother justifies those expenses, the claim succeeds only in part and costs are shared.
- Treating the old withdrawals as time-barred by counting them one by one, when article 1972 runs the period from when the office ended; or, conversely, letting five years pass from the death without a demand that interrupts it.
- Filing the claim without the prior attempt to negotiate: article 403.2 of the Ley de Enjuiciamiento Civil prevents it being admitted if the requirement of article 5 of Ley Orgánica 1/2025 is not shown to have been met.
- Filing a criminal complaint on impulse when your mother's vulnerability cannot be proved, or over what was taken after the death: the exemption in article 268 of the Código Penal leads to dismissal and months are lost.
- Taking money out of the account yourself to even things up: you put yourself in the same position as your brother, including under article 1002, and lose before the judge the strength of someone who claims with clean hands.
The law that applies
- Art. 1720 CC. Every agent is bound to account for his dealings and to hand over to the principal everything received under the mandate, even where what was received was not owed to the principal. BOE-A-1889-4763
- Art. 1724 CC. The agent owes interest on sums he applied to his own use from the day he did so, and on those still owed after the mandate ends, from when he is in default. BOE-A-1889-4763
- Art. 1732 CC. A mandate ends on revocation, on the agent's renunciation, on the death or insolvency of principal or agent, on support measures for the agent affecting the act, and on a representative curatorship for the principal, save for preventive mandates. BOE-A-1889-4763
- Arts. 1964.2 y 1972 CC. Personal claims with no special period are time-barred after five years from when performance may be demanded, and the period for claims to demand an account runs from the day on which those who had to give it ceased to act. BOE-A-1889-4763
- Art. 1002 CC. Heirs who have taken or concealed any items belonging to the estate lose the power to renounce it and are treated as having accepted it outright, without prejudice to any penalties they may have incurred. BOE-A-1889-4763
- Art. 1035 CC. A forced heir sharing the estate with others must bring into it whatever he received from the deceased during her lifetime by dowry, gift or other gratuitous title, so that it is counted in fixing the legítimas and in the division account. BOE-A-1889-4763
- Art. 268 CP. Exempts from criminal liability, leaving only civil liability, spouses not separated, ascendants, descendants, siblings and first degree in-laws living together, for property offences against one another, except where there is violence, intimidation or abuse of the victim's vulnerability due to age or disability. BOE-A-1995-25444
- Art. 5 LO 1/2025. In civil matters it requires a prior attempt at an appropriate means of dispute resolution, with the same subject matter, in the declaratory proceedings of book II and the special proceedings of book IV of the LEC, save for the matters it lists, and does not require it for preliminary disclosure or prior interim measures. BOE-A-2025-76
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
My brother was a joint holder of the account. Was he not entitled to take the money out?
He was entitled to take it out as far as the bank was concerned, not to keep it. The Tribunal Supremo has held that joint and several holding only gives each holder the power to dispose, and that ownership of the balance depends on who paid the funds in. If the only money going into the account was your mother's pension and savings, the money was hers and today belongs to the estate. Only if your brother also paid money in can he argue for a share, and article 393 of the Código Civil presumes the shares to be equal unless otherwise proved.
He says my mother gave it to him. What does he have to prove?
The intention to make a gift, which is not presumed and must be proved by whoever relies on it. A transfer proves the money left the account, not that your mother wanted to give it away, and if at that time she had documented cognitive decline, the gift argument is badly weakened. And even if he proves it, article 1035 of the Código Civil requires the gift to be counted in the division, so it is deducted from his share unless your mother expressly exempted him.
The bank will not give me the transactions before the death. What can I do?
Heirs succeed your mother in all her rights under article 661 of the Código Civil, including the right to know the movements on her accounts, and article 3 of Ley Orgánica 3/2018 guarantees heirs access to the deceased's financial data even where the deceased had forbidden access to the rest. If the bank resists, the request is repeated in writing and, once proceedings are under way, the court is asked to order the bank to produce the documents, as article 330 of the Ley de Enjuiciamiento Civil allows when they matter to the judgment.
Can I report my brother for misappropriation?
It depends on whom he harmed and on your mother's condition. Article 268 of the Código Penal leaves property offences between parents, children and siblings committed without violence unpunished under criminal law, unless there is abuse of the victim's vulnerability due to age or disability. What he took during the life of a very elderly mother or one with dementia can be prosecuted; what he took after the death, to your detriment, normally only gives rise to civil liability. In both cases, the money is recovered all the same through the civil courts.
The largest withdrawals were seven years ago. Are they already time-barred?
Not necessarily. If your brother made them as an authorised user or attorney and went on managing the account until the end, article 1972 of the Código Civil runs the period for the claim for an account from when he ceased to act, which is your mother's death, and he will have to justify those old transactions as well. What is advisable is not to wait: the five years from the death are interrupted by a demand with proof of delivery or by a request to negotiate, and that document should go out as soon as possible.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.