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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Estate Law
Satisfied Customers: 41221
Experience:  JA Mentor. I run my own practice that specializes in Estate Preparation and Administration
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My brother and I were named as co-executors of my mother's

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My brother and I were named as co-executors of my mother's estate in montana in april of 2014. on her trust checking account, we signed a document stating that checks were to be signed by both of us. he lives in the town she was from and I live states away in California.
I left the town after her house was packed up and left with signing checks for him to use to pay her bills that came in after her demise.
It seemed that that was the case in the beginning and then it turned into checks being cashed by him for cash on the account with only his signature on the bot***** *****ne. I check the account from time to time and asked the bank why they were not requiring the two signatures...they said it was too much work to find both parties the first time I inquired and the second inquire ended with the bank officer telling me it was just too much trouble.
In our inheritance we received gas and oil royalties that involve getting a lawyer from the state the properties are in to file for a change in thename on the royalty distribution.
The papers my mother left with these royalties were not very specific but we managed to get the largest royalty divided between my brother and myself. I knew there were other accounts outstanding but had no idea of how to address them. Our estate lawyer did not shed any light on the subject.
For some reason I did not check on the hecking account regularly and finally took a look when I noticed a large deposit going into the account one day and being drawn out for cash the next by my brother. I was looking at a line item statement from the bank and called to ask them how I could
where the deposit came from. I was directed to call one on their internet banking specialists and he told me where the deposit originated from. It was a gas and oil royalty check. I then asked if there were any more checks and they ended up being deposited every month when my brother got the mail. Looking at the cash withdrawals they seem to coincide with the royalty checks he deposited...and took out in cash.
For various reasons I do not speak to my brother and am amazed that I have now found that the account is being fed by checks from 5 companies.
At what point can my brother be charge with grand theft ? he has cashed or withdrawn nearly $10,000.00 from the account with no written notation of what it could be for.
Is the bank at all liable for not requiring two signatures for cash withdrawals on the account?
I have more questions re the estate but this is the most pressing. For now the deposits are being held pending my lawyer getting the different companies paperwork to change the distribution but she does not want to press the issue concerning the various cash withdrawals.
Submitted: 2 years ago.
Category: Estate Law
Expert:  Dimitry Esquire replied 2 years ago.
Thank you for your question. Please permit me to assist you with your concerns.
To answer directly, Montana has consolidated the theft and grand theft statutes and has one code based on amounts. The largest potential penalty is for thefts of above $10,000. Keep in mind, however, that is a situation where you may also seek charges for embezzlement, forgery (if he ever signed as you), and breach of fiduciary duty. Here is the code below:
45-6-301. Theft. (1) A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
(a) has the purpose of depriving the owner of the property;
(b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or
(c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner of the property.
(2) A person commits the offense of theft when the person purposely or knowingly obtains by threat or deception control over property of the owner and:
(a) has the purpose of depriving the owner of the property;
(b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or
(c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner of the property.
(3) A person commits the offense of theft when the person purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another and:
(a) has the purpose of depriving the owner of the property;
(b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or
(c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner of the property.
(4) A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over any part of any public assistance provided under Title 52 or 53 by a state or county agency, regardless of the original source of assistance, by means of:
(a) a knowingly false statement, representation, or impersonation; or
(b) a fraudulent scheme or device.
(5) A person commits the offense of theft when the person purposely or knowingly obtains or exerts or helps another obtain or exert unauthorized control over any part of any benefits provided under Title 39, chapter 71, by means of:
(a) a knowingly false statement, representation, or impersonation; or
(b) deception or other fraudulent action.
(6) (a) A person commits the offense of theft when the person purposely or knowingly commits insurance fraud as provided in 33-1-1202 or 33-1-1302;
(b) purposely or knowingly diverts or misappropriates insurance premiums as provided in 33-17-1102; or
(c) purposely or knowingly receives small business health insurance premium incentive payments or premium assistance payments or tax credits under Title 33, chapter 22, part 20, to which the person is not entitled.
(7) A person commits the offense of theft of property by embezzlement when, with the purpose to deprive the owner of the property, the person:
(a) purposely or knowingly obtains or exerts unauthorized control over property of the person's employer or over property entrusted to the person; or
(b) purposely or knowingly obtains by deception control over property of the person's employer or over property entrusted to the person.
(8) (a) Except as provided in subsection (8)(b), a person convicted of the offense of theft of property not exceeding $1,500 in value shall be fined an amount not to exceed $1,500 or be imprisoned in the county jail for a term not to exceed 6 months, or both. A person convicted of a second offense shall be fined $1,500 or be imprisoned in the county jail for a term not to exceed 6 months, or both. A person convicted of a third or subsequent offense shall be fined $1,500 and be imprisoned in the county jail for a term of not less than 30 days or more than 6 months.
(b) (i) Except as provided in subsection (8)(c), a person convicted of the offense of theft of property exceeding $1,500 in value or theft of any amount of anhydrous ammonia for the purpose of manufacturing dangerous drugs shall be fined an amount not to exceed $50,000 or be imprisoned in a state prison for a term not to exceed 10 years, or both.
(ii) A person convicted of the theft of any commonly domesticated hoofed animal shall be fined an amount of not less than $5,000 or more than $50,000 or be imprisoned in a state prison for a term not to exceed 10 years, or both. If a prison term is deferred, the court shall order the offender to perform 416 hours of community service during a 1-year period, in the offender's county of residence. In addition to the fine and imprisonment, the offender's property is subject to criminal forfeiture pursuant to 45-6-328 and 45-6-329.
(c) A person convicted of the offense of theft of property exceeding $10,000 in value by embezzlement shall be imprisoned in a state prison for a term of not less than 1 year or more than 10 years and may be fined an amount not to exceed $50,000. The court may, in its discretion, place the person on probation with the requirement that restitution be made under terms set by the court. If the terms are not met, the required prison term may be ordered.
(9) Amounts involved in thefts committed pursuant to a common scheme or the same transaction, whether from the same person or several persons, may be aggregated in determining the value of the property.
History: En. 94-6-302 by Sec. 1, Ch. 513, L. 1973; amd. Sec. 22, Ch. 359, L. 1977; R.C.M. 1947, 94-6-302; amd. Sec. 1, Ch. 374, L. 1979; amd. Sec. 7, Ch. 198, L. 1981; amd. Sec. 2, Ch. 581, L. 1983; amd. Sec. 21, Ch. 670, L. 1985; amd. Sec. 65, Ch. 464, L. 1987; amd. Sec. 2, Ch. 739, L. 1991; amd. Sec. 1, Ch. 190, L. 1993; amd. Sec. 3, Ch. 616, L. 1993; amd. Sec. 2, Ch. 618, L. 1993; amd. Sec. 9, Ch. 237, L. 1995; amd. Sec. 5, Ch. 397, L. 1999; amd. Sec. 70, Ch. 227, L. 2001; amd. Sec. 1, Ch. 427, L. 2001; amd. Sec. 50, Ch. 380, L. 2003; amd. Sec. 1, Ch. 137, L. 2005; amd. Sec. 35, Ch. 416, L. 2005; amd. Sec. 17, Ch. 595, L. 2005; amd. Sec. 4, Ch. 400, L. 2009; amd. Sec. 5, Ch. 473, L. 2009.
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As far as the bank's liability, they are likewise liable for breach of fiduciary duty if they intentionally failed to obtain multiple signatures knowing that this was a requirement. So yes, they can also be pursued for damages as well.
Sincerely,
Dimitry, Esq.

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