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

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  • #16
    Look at it from the employer's perspective. They don't know you. You say you are the person's brother and authorized to handle the estate, but you've submitted no legal proof of that. For all they know, you could be a scam artist. There could be multiple heirs fighting over the estate and you could be trying to get your hands on the money before the rest of your siblings even know it exists (believe me, siblings or heirs fight over estates all the time, even ridiculously small amounts of money).

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    • #17
      We would issue the check to the Estate of John Doe at the last address we had for him.
      I find that the harder I work, the more luck I seem to have.
      Thomas Jefferson

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      • #18
        My guess, and it is only that, is the company is waiting to see if they get notice of the actual executor of the estate. If they do not within the timeframe by which they must turn the funds over to the state as unpaid wages, they will do just that and let the state sort out who may collect.
        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.

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        • #19
          If the employer hands out property to someone who is not legally entitled to it, then the employer can be held legally responsible for that mistake. Basically be required to pay it a second time to the correct party. Many/most employers will simply escheat the funds to the state unless a clear legal situation presents itself. Which this (so far) is not. There is no legal upside for the employer to give you the money, based on what has been said so far.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #20
            Thank you for your replies.
            Since I do not even have a check "to the estate of", it doesn't make sense for me to open an estate.

            The family now must absorb the cost of cremation and burial.
            The employer isn't releasing the 401K "profit sharing" funds to the designated beneficiary either.

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            • #21
              You might wish to consider if a Small Estate Affadavit, which is a simplified procedure that allows assets to be transferred in small estates without going through the full probate process, would work for your situation. It may make it easier for you to obtain and cash the last check.

              Are you saying that the employer self-administers the 401k plan or is it an outside vendor? One holdup could be that there was a 401k contribution withheld in the final paycheck and, until that issue is resolved, the employer or recordkeeper can't release all the funds. The plan may also only release funds at set time periods, i.e., quarterly.
              Last edited by Marketeer; 03-23-2016, 08:32 AM.
              I am not able to respond to private messages. Thanks!

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              • #22
                401(k) requires the use of a third party trustee. It is possible for the employer to be the "record keeper" but not the "trustee". And the trustee is the party who controls the funds and files the tax returns.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

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                • #23
                  Thank you for your replies.
                  As earlier suggested, I contacted the CA-DLSE.
                  Unfortunately they do not deal in circumstances of sibling and siblings employer.

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                  • #24
                    On the question of the 401(k) only, contact the trustee (not the employer). The trustee has the last word here.

                    Regarding the CA-DLSE position on siblings payouts, that is another way of saying that there is NO instructions to employers and no legal cover if they make a good faith mistake. Which is why I said escheating the funds to the state and making them handle the decision is the legally smart play for the employer.

                    I understand that this is not what you want to hear.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

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