Account emptied prior to death by a person acting under a power of attorney

A few years ago, there was still around 120,000 euros in the mother’s savings account. The estate inventory now lists 4,300 euros. In between lie the years during which the sister handled the banking affairs under a power of attorney, as the mother was no longer able to do so herself. When asked, she stated that the money had simply been needed for the mother’s needs, and that there were no supporting documents.

When faced with figures like these, many people are quick to suspect fraud. Sometimes the suspicion is justified. Often, however, a long period of end-of-life care, with care home costs and an increasing need for assistance with daily living, has simply cost more money than most relatives realise. It is possible to establish which of the two stories is true. For those entitled to a compulsory share of the estate, however, the process involves different authorities than most people expect. One of these has a deadline that is easily overlooked.

Different rules apply to money withdrawn from an account after death than to withdrawals and transfers made whilst the account holder is still alive. A separate article on Statutory share in respect of life insurance, bank accounts and investment accounts she explains.

My brother had power of attorney. What can I do?

You are entitled to full disclosure from the heirs, which also includes gifts and claims made by the estate against the authorised representative. However, as a beneficiary of a compulsory share, you cannot, as a rule, demand an account directly from your brother.

The compulsory share does not make you an heir, and this is where the limitation arises. It is purely a financial claim against the heirs amounting to half the value of your statutory share of the estate (Section 2303 of the German Civil Code (BGB)) and does not grant you access to the deceased’s accounts or documents. Nor is the bank permitted to disclose anything to you due to banking secrecy. The right to an account of the affairs and to the surrender of whatever the authorised representative had obtained under the power of attorney (Sections 666, 667 of the German Civil Code (BGB)) belonged to the principal. Upon death, this right passed exclusively to the heirs (Section 1922 of the German Civil Code (BGB)).

This applies to anyone who has been omitted from a will, even though they would have inherited had there been no will. Legally speaking, this constitutes disinheritance, even if the word does not appear anywhere. The same applies to anyone who has received only a bequest instead of a share of the estate (Section 2307 of the German Civil Code (BGB)). Such a bequest may be a sum of money that falls short of the compulsory portion. The situation is different if you are named as an heir, even if only with a small share. In that case, you are a co-heir and have other means at your disposal, which the website explains in Settlement of inheritance presents.

The legal remedy available is the right to information against the heirs (Section 2314 of the German Civil Code (BGB)), and this encompasses more than just the account balance on the date of death. The heirs are required to provide a list of all assets and liabilities, which must also include the estate’s claims. Such a claim may be directed against an authorised representative who has retained money for themselves without justification. Gifts must also be included in the list, particularly those made within the last ten years, as they may increase the statutory share through a supplementary payment. The right to information is directed against the authorised representative if she is also an heir, and she must declare any payments made to herself in the same way as any other gift. The heirs cannot claim ignorance and must obtain the necessary information, insofar as this is reasonable to expect of them. As the account holder’s legal successors, they may request the bank statements from the bank.

As an additional remedy not available to co-heirs, those entitled to a compulsory share may request a notarial inventory of the estate.

How do I get hold of my bank statements?

As a rule, you will not receive the statements personally, but you can arrange for a notary to examine the accounts. According to prevailing case law, there is no general right to receive supporting documents such as bank statements as part of the information provided. The notarial inventory of the estate fills this gap (Section 2314(1), third sentence, of the German Civil Code (BGB)). You may request it without giving a reason, even if the heirs have already submitted their own statement.

The notary must not simply write down whatever the heirs tell him. According to the case law of the Federal Court of Justice, he must determine the assets independently and carry out the investigations that an objective third party in your position would consider necessary. This does not oblige him to search blindly. However, he must follow up on specific leads, and several Higher Regional Courts consider it necessary to review bank statements covering the last ten years. An account that has significantly diminished in value over the years under a power of attorney may constitute such a lead.

Your information is therefore important, and often all it takes is an account balance from a particular year or a savings certificate that was never mentioned again. You are entitled to request to be present when the inventory is drawn up (Section 2314(1), second sentence, of the German Civil Code (BGB)), and can contribute your knowledge directly at that time. The inventory will remain incomplete if the heirs refuse to cooperate as required and, for example, do not consent to enquiries being made of banks. In this case, you may demand that it be supplemented.

The estate bears the costs (Section 2314(2) of the German Civil Code (BGB)), and if it is almost empty, this can itself become a point of contention. Furthermore, the process is rarely quick. Notaries are often fully booked for months at a time, and banks delete older account records once the statutory retention periods have expired. As a final step, an affidavit is required if, despite the inventory, there remain reasonable doubts as to whether it was drawn up with due care (Section 260(2) of the German Civil Code (BGB)). The article When the heirs put up a wall explains what to do if the heirs refuse to provide information or send only a meagre list.

Can I also ask the recipient for information?

Under certain conditions, you may also be entitled to request information from the recipient of the gift, even if they have not inherited anything. In such cases, the Federal Court of Justice grants those entitled to a compulsory share a right to information in good faith. This requires concrete evidence of a gift and applies only if the information cannot be obtained by any other reasonable means. As a rule, this means that seeking information from the heirs is not a viable option. Finally, the recipient must be able to provide the information without undue difficulty.

You will need to follow this procedure if the money has ended up with someone who is not an heir. A typical example is a daughter with power of attorney, whilst the father’s second wife has become the sole heir and may genuinely know nothing about the payments made to her stepdaughter. An authorised representative who has inherited is, in any case, obliged to provide information under Section 2314 of the German Civil Code (BGB), so this roundabout approach is not necessary. Information from the person who received the gift becomes particularly important if the claim is ultimately directed against them, as there is a very short time limit for this.

How can I tell if money has been moved?

The pattern of account transactions reveals more than just the total amount. An account can shrink by six-figure sums in just a few years without anyone having done anything wrong. Outflows stand out when they do not correspond to any apparent need on the part of the account holder. The following transactions then typically appear on the statements.

• Transfers to the authorised representative or their family without any apparent consideration
• Regular, round-figure cash withdrawals far in excess of previous day-to-day needs
• increasing cash payments, even though the care home collected its fees by direct debit
• Withdrawals made in weeks when the account holder was in hospital
• redempted savings certificates or investment accounts, the proceeds of which do not reappear anywhere
• Payments for a car or a renovation that benefited others

What only looks like abuse

Much of what seems alarming at first glance has a simple explanation, such as the high costs of a care home. According to figures from the Association of Alternative Health Insurance Funds, as of 1 July 2026, people in need of care in a nursing home will pay an average of 3,364 euros a month out of their own pocket in the first year across Germany. Anything not covered by their pension is deducted from their savings, and over several years this can add up to a six-figure sum. A home care service or a carer in one’s own home also costs a lot of money. Many older people also prefer to pay for their day-to-day expenses in cash, and for them, consistent withdrawals month after month are the norm.

Even bank transfers to the authorised representative’s account may be permissible, as they are entitled to recover money that they have advanced out of their own pocket on behalf of the principal (Section 670 of the German Civil Code (BGB)). In many families, the care allowance paid by the care insurance fund is also passed on to the child who provides care at home. This is common practice and, in itself, is not a sign of abuse.

A timeline puts the suspicion into context

A simple timeline helps before any accusations are made. It records when the power of attorney was granted and from when it was actually used. This is supplemented by the move into the care home and the point from which the father was no longer able to manage his own affairs. The timeline should also include all account balances for each year, as shown, for example, in old statements or letters from the bank. Using these key figures, it is possible to work out roughly how much of the decline can be explained by the pension and known expenses. It is only the remaining balance that raises the real question. The solicitor or a lawyer will also need the same key figures later on.

Does it make any difference whether the money was given away or simply taken?

There is a big difference, as this determines the rules according to which the money is taken into account when calculating your statutory share.

If the deceased wished to give the money away

A gift is deemed to have been made if the deceased gave the money away themselves or consented to a gift, and was still capable of doing so at the time. It increases the statutory share by the amount of the supplementary claim (Section 2325 of the German Civil Code (BGB)), to which, however, separate rules apply. Only gifts made in the ten years prior to death are taken into account, and each is reduced proportionally. In the year immediately preceding death, the gift counts in full; for each preceding year, it is reduced by one-tenth. In the case of payments made over many years, each individual payment is assessed on the basis of its own date. Gifts to a spouse, on the other hand, count in full if the marriage lasted until the time of death, because the time limit for them only begins with the end of the marriage. Gifts given on occasions customary within a family are excluded (Section 2330 of the German Civil Code (BGB)). In the article on Claim to a supplementary compulsory portion This is calculated in detail.

The claim for top-up is initially directed against the heirs. It is only directed against the recipient if the heirs are not obliged to make up the shortfall (Section 2329 of the German Civil Code (BGB)). This is the case, for example, if the estate is insufficient and they limit their liability to the value of the estate. Where an account has been emptied, this course of action is often the most important. The recipient is then liable under the rules governing unjust enrichment and may, in certain circumstances, object on the grounds that they no longer have any of the money in their possession. A separate, short time limit also applies to this claim.

If someone has taken something without permission

Money which the authorised representative has retained for himself, even though he was not entitled to it, does not constitute a gift. The deceased was therefore entitled to repayment and could, for example, demand the return of the money under the law of agency or claim damages. This claim passed to the heirs upon death and forms part of the estate. For the purposes of the compulsory share, it counts as an asset for which there is neither a reduction nor a ten-year limit. This applies only insofar as the claim exists and is enforceable. An uncertain claim against an authorised representative who has not inherited is initially excluded from the calculation. The heirs must then take steps to clarify the claim, provided this is consistent with the proper administration of the estate. Once the outcome is determined, a retrospective adjustment is made (Section 2313 of the German Civil Code (BGB)).

If the authorised representative is also the sole heir, she is legally obliged to repay the sum to herself, and the claim lapses upon the opening of the succession. Nevertheless, according to the case law of the Federal Court of Justice, the claim is deemed to continue to exist for the purposes of calculating the compulsory share, because the amount of the compulsory share should not depend on who happens to have become an heir. Where there are several heirs, the claim belongs to the community of heirs and is also taken into account.

The correct classification depends on the individual case and is often the real point of contention. A simplified example involving a compulsory share of one quarter illustrates just how much depends on this. In the case of a gift of 20,000 euros made three years and five months before death, only 14,000 euros count due to the reduction rule, and the statutory share increases by 3,500 euros. If someone has unlawfully taken the same €20,000, the full amount counts, and the statutory share increases by €5,000.

What are we to make of the usual explanations?

Any one of these explanations may be correct, but none of them automatically concludes the examination. It depends on whether it fits the figures.

Care

Care alone does not entitle anyone to withdraw money from the account. However, payment was permitted if it had been agreed, and reasonable payments for agreed care do not constitute a gift. The case before the Higher Regional Court of Karlsruhe concerned a mother who had signed cheques for her daughter, on which the purpose was stated as ‘care allowance’ or ‘expense allowance’. The judges regarded the sums as consideration for the care, and the brother, as sole heir, would have had to prove otherwise (judgement of 16 May 2017, 9 U 167/15). However, where there is no prior agreement and the sums involved are substantial, this may constitute a gift, even if it was intended as a token of gratitude. Furthermore, a child’s care of their parents may reduce the siblings’ statutory share through what is known as ‘equitisation’ (Sections 2316, 2057a of the German Civil Code (BGB)). This offsetting provision is discussed in the article Claiming a compulsory share explained in more detail.

Household and cash

A representative may, of course, pay for day-to-day living expenses from the account. Regular withdrawals of a few hundred euros a month are not unusual for older people who pay in cash. These withdrawals only need to be explained if they increase whilst the actual need decreases. For instance, after moving into a care home, the care home bill covers almost everything, and in most cases only a small amount of pocket money is needed.

Loan

What matters here is the direction in which the money flowed. The authorised representative might say that they were merely repaying a loan they had previously given to the deceased, and that may well be true. This is illustrated by the case of a daughter who, shortly after her mother’s death, transferred 12,000 euros using her mother’s power of attorney. The transfer was described as being for the purpose of repaying a loan. Following the taking of evidence, the Munich Higher Regional Court established that she had lent the sum to her mother in 2005 and that repayment had been deferred until her death. The court therefore considered the claim brought by her brother, the sole heir, to be unfounded (interlocutory ruling of 12 June 2025, 19 U 666/25 e). Conversely, a loan granted by the deceased to an authorised representative is not a loss of money for those entitled to a compulsory share. The claim for repayment forms part of the estate and is taken into account. A waiver by the deceased transforms it into a gift.

Gift

A gift presupposes that the deceased intended it and was still capable of forming that intention at the time. A power of attorney does not automatically entitle the holder to make a gift to themselves, and some powers of attorney expressly exclude gifts or permit only customary occasional gifts. A valid gift is generally ruled out if the principal was no longer capable of forming their will at the time of the alleged gift, in which case it constitutes an unauthorised withdrawal. However, if the declaration is valid, the rules on the supplementary compulsory portion with reduction apply.

Who has to prove what the money was spent on?

The authorised representative is often required to prove to the heirs how the funds were used, at least where they held a comprehensive power of attorney for healthcare. The courts generally regard such a power of attorney between family members as a mandate involving genuine obligations that go beyond mere goodwill. An agent who manages another person’s money must prove that they have used it for its intended purpose. The Higher Regional Court of Karlsruhe ruled in favour of a daughter holding a general power of attorney and a lasting power of attorney, and the Higher Regional Court of Munich takes the same view. According to this case law, a mere power of attorney over a bank account is not sufficient in itself for such a mandate. Among married couples living together, the management of money by one partner is usually regarded as a matter of trust, for which no account needs to be rendered retrospectively.

The burden of proof does not require a receipt to be produced for every euro. In Karlsruhe, the court considered it sufficient that the daughter provided a clear account of how she had handed over the withdrawn pocket money to her mother and used other sums to pay for her clothes and medication. A mere denial without any basis was not enough for the court.

The wording of the power of attorney may be the deciding factor

On 20 November 2025, the Ellwangen Regional Court held that a clause was valid under which authorised representatives are accountable solely to the principal and have no duty to provide information to third parties, even after the principal’s death (3 O 185/25). The claimant, a co-heir, therefore did not receive a statement of accounts. The court left open the question of whether this also applies where there are specific grounds for suspecting dishonesty, as no such grounds had been put forward. The judgement is not yet final, as an appeal is pending before the Stuttgart Higher Regional Court (19 U 82/25). It is also relevant whether a power of attorney permitted or excluded gifts.

For those entitled to a compulsory share, all this has an indirect effect, as such a clause deprives the heirs of their right to a settlement. The heirs’ obligation to disclose gifts remains in force, and the notary may still examine the bank statements. In your own proceedings concerning the compulsory share, you must, in principle, prove the facts on which you base your claim, and this may include demonstrating that a gift was made. However, the other party must generally set out in detail what the money was used for, if they are the only ones who can know this. An heir who was also an authorised representative cannot therefore limit themselves to a blanket denial.

What deadlines are coming up?

The most critical limitation period applies to the recipient of the gift. The claim under Section 2329 of the German Civil Code (BGB) becomes time-barred exactly three years after the opening of the succession, even if the recipient was completely unaware of the gift (Section 2332 BGB). In the case of a mother who died on 14 March 2026, the limitation period ends at the close of 14 March 2029. It can be suspended, in particular, by taking legal action against the recipient or by engaging in serious negotiations with them (Sections 203 and 204 of the German Civil Code (BGB)). A letter to the heirs is not sufficient for this purpose, and, according to case law, a claim seeking only information does not, either, suspend the time limit for payment. Because, in cases where accounts have been emptied, it often only becomes apparent at a late stage that the estate is insufficient, it is not uncommon for this time limit to expire whilst the inventory is still the subject of dispute.

Claims for the compulsory share and supplementary claims against the heirs are generally subject to a limitation period of three years from the end of the year in which the claimant became aware of the opening of the succession and of the testament that disadvantages them (Sections 195 and 199 of the German Civil Code (BGB)). In the case of a claim for supplementary inheritance, the prevailing view holds that it also depends on when one knew of the gift or, had it not been for gross negligence, ought to have known of it. For gifts, the ten-year limitation period also applies, calculated backwards from the date of death. Claims for repayment against an authorised representative may also be subject to a limitation period.

Is there any point in reporting a case of breach of trust to the police?

It can trigger investigations, but it does not recover any money, and in family cases it often ends before it has really begun. An authorised representative who abuses their power of attorney and thereby causes financial loss to the principal may be liable to prosecution for breach of trust (Section 266 of the German Criminal Code (StGB)). However, the offence is only prosecuted at the request of the aggrieved party if the authorised representative was a relative within the meaning of criminal law or lived in the same household as the deceased (Section 266(2) in conjunction with Section 247 of the German Criminal Code (StGB)). Relatives include, for example, the deceased’s children, grandchildren and children-in-law. Siblings and the spouse are also included. The aggrieved party was the deceased, and their right to file a complaint does not pass to children or heirs upon their death. The Federal Court of Justice has expressly ruled on this provision. A complaint against a family member therefore usually has no consequences, unless the deceased or a guardian had already filed a criminal complaint during their lifetime. By contrast, the public prosecutor’s office investigates authorised representatives outside the family and household ex officio.

During the preliminary investigation, the public prosecutor’s office may request account records from the banks, and a solicitor may, under certain circumstances, be granted access to the investigation file. Criminal proceedings do not determine civil claims. Even if a case is dropped, this does not mean that no claim exists, as intent must be proven for a criminal conviction. Meanwhile, the time limits for civil claims continue to run. Furthermore, reporting one’s own sister to the police usually changes the relationship irrevocably and often has a more lasting impact than any civil action.

Does that mean I have to take action against my own siblings?

Her claim is directed against her siblings, if they are the heirs, and the conflict cannot be entirely avoided in that case. However, it is possible to approach it objectively.

A family dispute often escalates less because of the claim itself than because of the tone. A sister who has provided care for years and is then accused of helping herself to the assets rarely sends supporting documents and often sends a letter from a solicitor. By requesting a notarised inventory, you are exercising a right to which all beneficiaries of a compulsory share are entitled, and you are not making any allegations against anyone. In this sense, the inventory also protects the authorised representative. If she has used the money properly, this is usually evident from the bank statements, and any suspicion is dispelled.

Some people find it helpful to leave the correspondence to a solicitor from the outset, so that every family gathering does not turn into a legal battle. Others do not wish to pursue the dispute either in person or through a solicitor. For them, selling their statutory share is an option, which the law expressly permits (Section 2317(2) of the German Civil Code (BGB)). The buyer pays a fixed price and subsequently bears the risk of any dispute with the heirs at their own risk.

When is it worth getting the facts?

It is worth looking into the matter if, after a thorough reconciliation, a significant amount remains unaccounted for and the time limits have not yet expired. A simplified example can illustrate this. Six years ago, there was 150,000 euros in the account; today, there is 5,000. During this period, around 100,000 euros in pension payments were received. Four years in a care home and, prior to that, two years at home with a care service cost a total of around 195,000 euros. This explains the majority of the shortfall, leaving around 50,000 euros unaccounted for.

Ultimately, the only thing that matters to you is your share of this, and with two children and no surviving spouse, the compulsory share amounts to a quarter. Even if the full 50,000 euros had been transferred without authorisation, the amount at stake would therefore be 12,500 euros, and in the case of a gift, it would be less, depending on the timing. This must be weighed against the time and costs involved. It often takes more than a year for everything to be sorted out. Legal proceedings against the heirs or the person who received the gift require legal and court costs to be paid up front, and the losing party usually also bears the other side’s costs.

Not every account with a reduced balance constitutes a claim, and sometimes going through the statements simply highlights just how expensive the last few years have been. This, too, is a finding that actually comes as a relief to many families. If, after reconciling the accounts, a significant amount remains outstanding and the statements reveal conspicuous patterns, investigating the matter has nothing to do with mistrust. In such cases, it is simply the standard procedure for correctly calculating a compulsory share.

What if the resolution depends on money and perseverance?

No one should have to forgo a legitimate claim simply because of financial hardship. Normally, the compulsory share is claimed and paid out to the heirs in the usual way, and this requires neither a court nor Erbfinanz. However, when a bank account has been emptied, the process is rarely so straightforward. It often takes months to obtain a complete statement of account and determine which withdrawals should be included in the calculation, and sometimes the only option left is to take legal action against the heirs or the person who received the gift. In such cases, Erbfinanz can help. We can bear the cost risk of enforcement, so that you do not have to pay for the solicitor or court costs up front. Our fee is a share of the proceeds, agreed in advance and payable only if the case is successful. Legal representation is always provided by a specialist solicitor. This can be your own solicitor, or we can arrange one from our network.

Indemnis GmbH, based in Munich, is the company behind Erbfinanz. Neither the siblings nor the other heirs will be informed of your enquiry. We will tell you straight away if financing is not an option.

The Free enquiry It only takes a few minutes and there’s no obligation. One of our team will then get in touch to arrange an initial chat.