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death in Calif and employer not issuing last check to brother California

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  • death in Calif and employer not issuing last check to brother California

    A sibling passed away Aug 2015 in California with no children, spouse, partner, or will. He was renting there with no assets or life insurance. His final death certificate was issued Jan 2016 and was sent to his employer end of Jan 2016.
    The head HR person there confirmed that she received it and asked for their laptop and cell phone be returned. They have been returned and confirmed that she received them.
    At that time she also said that she has mailed his last check to me. That was at the end of Feb 2016. She has been uncommunicative and now it is 3 weeks later and nothing has arrived. Should this take this long? Does his employer benefit from waiting or not paying? Do I need to get a lawyer? I am out of the state of Calif and a lawyer may be too expensive considering that they are holding up less than a months salary.
    Any answers, explanations, comments, or suggestions would be greatly appreciated.
    Thank you.

  • #2
    Hopefully DAW will pop in -- he is great with CA payroll issues. But I will say that there are specific rules on what to do with deceased employee wages. Did your brother have a will? It is possible that they have to write the check to the estate of your brother. Have you been declared the executor of his estate either thru a will or thru the courts?

    There is an old post from 2009 here : http://www.laborlawtalk.com/showthread.php?t=211818

    Otherwise you might contact the DLSE in CA and ask directly. They do have a manual online -- here is just an excerpt:
    "9.1.11 Payment of Wages Due Deceased Worker. DLSE may collect wages due to deceased workers. Such collections are placed in the Unpaid Wage Fund and, as described below, escheat to the State pursuant to law.
    9.1.11.1 Probate Code § 13600 provides that in the event of the death of a worker, the surviving spouse or the guardian or conservator of the estate of the surviving spouse may collect salary or other compensation owed by an employer to the deceased worker in an amount not to exceed $5,000.00. Probate Code § 13601(a) sets out the form of affidavit which may be signed by the surviving spouse. DLSE has form affidavits which may be used to notify the employer of the obligation to pay the salary due. SEPTEMBER, 2008 9 - 3
    DIVISION OF LABOR STANDARDS ENFORCEMENT ENFORCEMENT POLICIES AND INTERPRETATIONS MANUAL
    9.1.11.2 Note: Deputies unfamiliar with the Probate forms should contact their assigned attorney through their Senior Deputy. 9.1.12 Escheat To State. In addition, California Code of Civil Procedure also provides that any unclaimed personal property (which would include wages) escheats to the State. Unclaimed wages must be forwarded to the Con troller of the State of C alifornia within three years after the debt was incurred. (See Code of Civil Procedure §§ 1500 et seq.) "

    Comment


    • #3
      Thank you for the reply. I will check the DLSE manual.
      No he did not have a will.
      I have not been declared executor by the courts.
      There have been no assets until this last check was made known to me by his employer.

      Comment


      • #4
        They may not be able to send the check to you if you are not the spouse, guardian or conservator. Are there other siblings involved?
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

        Comment


        • #5
          Thank you for your reply.
          The HR person was informed that I am the family member taking care of his affairs.
          I am the only person that could and did send them his final death certificate, as well as their laptop computer and cell phone.
          Yes, she was made aware that there are other siblings

          Comment


          • #6
            Just because you report to HR that you are taking care of the affairs does not automatically make them liable to release the check to you. If you are not the executor and there are other siblings, she cannot assume that you are the one who is going to be authorized to receive it.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              Thank you for the reply.
              Yes, that makes a lot of sense.

              If there is an affidavit I need to send to his employer in California, where might I find it please?
              Is the affidavit going to call for me to be a spouse, executor, conservator, or guardian?
              I am technically none of these, only a brother trying to take care of his affairs, with the approval of all his siblings.

              Comment


              • #8
                Why don't you call the Ca. DLSE & talk to them?
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                Comment


                • #9
                  Thank you for the reply. I will give them a call.

                  Comment


                  • #10
                    In some companies, HR and Payroll are totally separate entities and HR may not be aware of the laws regarding things like pay for deceased employees. I venture to say this is an unusual enough occurrence that many payroll folks do not know the rules off the top. If you are just a sibling unofficially handling the affairs of the estate, they should not release the check to you. It may have been direct deposited or mailed if issued prior to the death (happens more often than you would think). If there is still an outstanding check, it most likely was sent to the state. Have you checked with the state? I haven't checked CA, but most states have an online search feature for money due which requires little personal information about a person in order to determine if funds are in their name. Collecting those funds varies by state.
                    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                    Comment


                    • #11
                      Thank you very much. This is good to know. I will try and check with the state of Calif.

                      Comment


                      • #12
                        I would have some trouble issuing a check to the brother as described. the CA-DLSE cite does not list them as a legally responsible party. the employer really does not have a dog in this fight. I would be thinking of maybe escheating the check to the state and make it their problem.
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

                        Comment


                        • #13
                          Thank you for your reply.
                          The state of California did not receive his last check as an earlier person suggested.

                          California Probate codes 13100-13116 call for a signed and notarized affidavit for situations of no will.

                          Also California Probate code 13050 (c) 2 states "the amount not exceeding $15,000 of salary is excluded from the value of the estate"

                          Why then would an employer hold the last check < $15,000 to later turn into the state of California???

                          Comment


                          • #14
                            Originally posted by Jules305 View Post
                            Why then would an employer hold the last check < $15,000 to later turn into the state of California???
                            They probably will not send it to you since you are not officially authorized to handle the deceased's assets.
                            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                            Comment


                            • #15
                              Thank you all very much for your replies!

                              Comment

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