I was his POA for medical and finances at the time of his death, he was never married and never had any children, he lived with me and we had hospice at my home for him, I was his beneficiary for his life insurance for his bank account, he has a social security check which I'm giving to his great great nieces and nephew. I spoke with a close friend who works at the social security office, and he said I need to file for legal representative and I work, I'd like to know how I do that, do I need to speak with a lawyer or is it something I can do on my own?
Check with an "Elder Care Attorney" to see what is required in your State.
This is an interesting question. I think both FF and Joann make good points.
Your friend used the term “ legal rep” but I think that could also be “ executor”.
For what month was the check issued? We assume it was the last check received but maybe not.
If for December then the moment you cashed (deposited) it you might have had a problem. If you haven’t heard from SS perhaps it is because the check hasn’t been cashed. On the other hand I would assume your friend told you that the last check was not to be cashed (depending on date of death). Too bad it wasn’t automatically deposited in his bank account from the start where it would have already been taken back if not valid. Of course after all this time it’s too late to go that route.
So thinking this out logically...,who does the check (if valid) belong to?......the estate of the deceased.
There was no will filed to settle the estate because apparently this check is the only property in the estate as all other property was outside a will.
The next question I asked myself is who would or could be the legal representative? That would be an executor, yourself most likely, if appointed. You can’t appoint yourself.
Who could appoint that person? A lawyer can’t appoint you. A lawyer could advise you. But I think it leads you back to being the executor (legal representative) of the estate. Which means the County Judge has to appoint an executor to handle the estate. (State laws being different as FF said-you would have to check. )
So depending on how much the check is for, and after checking directly with SS,
I would then go to the office in your area that probates wills (or call them) and ask what are the fees for a small estate with no will and see if it makes economical sense to go forward on your own or with an attorney. These filing fees are often posted online on the website.
Then you will know if you need an attorney.
A phone call could probably get you the attorney fees plus filing fees etc. You could make that call right now.
At any rate, I hope you come back and let us know what you find out.
We learn from each other.
There always seems to be a lot of confusion on these two issues. The last SS check and to probate or not to probate an estate because of the perceived expense of probate.
I have an aunt I take care of who never had children. While she has a will, all her assets have been taken care of outside the will for when the time comes. So my thinking has been that I would not have to probate her will.
However, She is a widow whose husband was involved in one of the original asbestosis lawsuits which has been pending for well over 30 years. Should she pass before this lawsuit settles I will have a similar problem with that check should it ever come in. So I was interested in researching this a bit. What I decided was any assett of a deceased person constitutes an estate. Estates without wills can still be probated. There are provisions for small estates. ( less than $50,000) but at some point the estate is too small to justify the cost and aggravation of becoming the legal representative or executor of the estate.
Now that’s what I discovered for my state. In your state there may be a different provision for very small estates.
I guess the moral of this story is to cash a gov check ASAP.
What seems to often be the system for intestate is for all assets to escheat to the state (state in control of ownership) till a “lineal heirship” determination is done & approved by PC. If that’s your states system, lineal -to me - are not ever a DIY as there’s notifications that have to be published over time (maybe 3-6 months). Dying intestate is one reason why so many states treasury & tax assessors have $&property that are considered unclaimed funds as there’s no defined owner to transfer the asset to via probate court like there would be for someone who dies with a will that names an executor and who gets what as defined by the will.
My state - Louisiana - had huge coffers with lots of $ & property left from the displacement due to Katrina. Lots of unclaimed insurance checks. For $ it went to State Treasures’ office and our new treasure -Schroeder- actually decided to make it consumer friendly with a FAQ how to get unclaimed funds. His office did a series of weekend “come & get it” at malls all over the state with huge lists of the UC in papers published like 2 times weeks before plus on line and he ran TV & radio spots. The one at Lakeside Mall had lines out the door. Lots of happy folks (& future voters) that weekend. I mention unclaimed funds cause if Uncles Estate is teeny, it’s can be more $ to get an atty than what it’s worth. Sometimes folks just wait it out till a UC can be filed with State Treasurers Office. Look to see what your states website has for UC.
? for you....the bank account that got his SS monthly check, when he died did he live the entire month before his death? Like alive all of November.If so, then the check SSA paid in December (his month of death) would be the last income check from SSA. Was a check paid in Dec? And that what your seeking? Or is it a January check? If SS pays the month after, that will be clawed back. There is no more income payments from SSA unless there are dependents like a surviving spouse or dependent children, which each get an increase to the SS checks they are already receiving. SSA will pay a one time $255 death benefit to them.
If Uncle had $ left in his bank accounts, then it’s up to banking laws as to how that $ can be accessed. If he did it POD to you, then it’s yours. Otherwise it goes into probate court or unclaimed funds system.
Social Security seems to be the only unresolved (and confusing) issue. But, if SS has already taken back the last payment it made per its rules, then maybe it is resolved, other than perhaps the $255 death benefit check. In my experience, Social Security's standard letters are very confusing and I've found it much better to talk with a representative face-to-face at the local SS office (walk-ins are accepted, but if you don't have a lot of free time, it's often better to call first for a face-to-face appointment time). If your local office is too far away, then a telephone call is the next best alternative and is still much better than trying to decipher SS's standard letters.
In short, based just on your description of your uncle's estate, there's probably no need for probate and thus no need for you to talk to an attorney. (Note: All POAs expire with the death of the POA grantor, so your POA has no bearing other than if there is any estate to be probated, in which case a probate judge may take that into consideration if you want to be the estate's administrator).
You already knew what was required to be his legal representstive? What state are you in?
Was it something your uncle would have had to of signed?
So you are saying SS took the check back in error? Then when you wrote them they agreed it was owed him but you had to come up with legal rep in order to actually have it made out to you instead of uncle?
An affidavit of heirship I am familiar with to support title of real property so maybe it will work. Come back and let us know.
I will I'm going to try the affidavit it's worth a try.