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

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  • DAW
    replied
    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.

    Leave a comment:


  • Jules305
    replied
    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.

    Leave a comment:


  • DAW
    replied
    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.

    Leave a comment:


  • Marketeer
    replied
    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.

    Leave a comment:


  • Jules305
    replied
    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.

    Leave a comment:


  • DAW
    replied
    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.

    Leave a comment:


  • ElleMD
    replied
    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.

    Leave a comment:


  • Morgana
    replied
    We would issue the check to the Estate of John Doe at the last address we had for him.

    Leave a comment:


  • ferretrick
    replied
    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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  • Jules305
    replied
    Thank you all very much for your replies!

    Leave a comment:


  • Betty3
    replied
    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.

    Leave a comment:


  • Jules305
    replied
    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???

    Leave a comment:


  • DAW
    replied
    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.

    Leave a comment:


  • Jules305
    replied
    Thank you very much. This is good to know. I will try and check with the state of Calif.

    Leave a comment:


  • ElleMD
    replied
    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.

    Leave a comment:

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