[WSBAPT] Insurance check issued to deceased person
Jennifer Johnson
jmhanigan at cni.net
Fri Dec 18 17:29:32 PST 2015
Thank you Rob and Eric! I think I’m first going to see if the insurance company will reissue the check based on an affidavit. Fingers crossed.
Jen
Jennifer Johnson | Attorney
Hanigan Law Office, PS
PO Box 39 - 68 Main Street
Cathlamet, WA 98612
(360) 795-3494
(360) 795-3001 (f)
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> On Dec 18, 2015, at 5:10 PM, Eric Nelsen <Eric at sayrelawoffices.com> wrote:
>
> Jennifer--Below is a thread from a while back. As I said, I haven't tested this method, but you might consider it.
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
> SAYRE LAW OFFICES, PLLC
> 1320 University St
> Seattle WA 98101-2837
> phone 206-625-0092
> fax 206-625-9040
>
>
>
> From: Eric Nelsen
> Sent: Monday, May 11, 2015 12:29 PM
> To: 'WSBA Probate & Trust Listserv'
> Subject: RE: [WSBAPT] EIN for Small Estate
>
> No, no offline responses that had an opinion about my "dodge." Regarding the ethics implication--my thought is, with all heirs in agreement and appointing the client as agent for purposes of endorsing the checks, the law office would represent the client in client's fiduciary/agent capacity, just as it would represent a formally-appointed PR. The client has voluntarily taken on fiduciary duties to the other heirs, and needs the lawyer's assistance to meet them. The client doesn't own the funds, but as agent is entitled to possession/control. Deposit to IOLTA accomplishes that.
>
> What makes me instinctively uneasy is whether the issuer of each check has a cause of action against the client: But even there I don't think it's a problem. Once the check leaves the issuer's hands, I don't think the issuer has much say in how it's handled. And because the money will go to the only people who were entitled to the money, there won't be anyone who could sue the issuer for lack of payment. No harm to the issuer, so no foul.
>
> The risk for the law firm I think is that it arguably has true, full fiduciary duties to the heirs, and if the money goes astray when distributed from the IOLTA account, the firm could be liable under some circumstances--failure to make ascertain proper heirs, failure to make sure the money is delivered into the right hands, etc., etc.
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
> SAYRE LAW OFFICES, PLLC
> 1320 University St
> Seattle WA 98101-2837
> phone 206-625-0092
> fax 206-625-9040
>
>
>
> From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Paul Neumiller
> Sent: Friday, May 08, 2015 10:37 AM
> To: 'WSBA Probate & Trust Listserv'
> Subject: Re: [WSBAPT] EIN for Small Estate
>
> Eric, I have been watching the listserv to see if you got any responses but haven’t seen any online. Did you get any responses off-line? It seems like you have set up a good plan under these circumstances though I’d be interested in what the WSBA ethics people would have to say about use of the attorney’s IOTA account for holding funds that, technically, don’t belong to the client.
>
> From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Eric Nelsen
> Sent: Tuesday, May 5, 2015 2:48 PM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] EIN for Small Estate
>
> I have thought of the following dodge for checks payable to the Estate where the Estate isn't opened, but haven't tried it out yet so I'll offer it up to see what people think:
>
> 1. Do your due diligence to ascertain who the proper successors to the Estate are, and ensure that all the small affidavit requirements (including concerning debts) have been met.
> 2. Have the successors all agree that they authorize one of them to act as their agent for purposes of endorsing the checks.
> 3. Have agent endorse the checks over to firm IOLTA account. S/he isn't technically authorized, but if all the successors have agreed, who is going to be harmed?
> 4. Handle the funds as estate funds and disburse in accordance with the law.
>
> I know it's generally not best practice to handle estate funds through the IOLTA account rather than requiring the Estate to open a separate bank account--but the point of this exercise is to avoid that.
>
> Seems to me, if the firm is willing to act essentially as a true fiduciary for the funds, and all successors agree to allow this procedure, there is low risk and high benefit to the successors in terms of efficiency. The agreement of all successors essentially serves as a waiver of any need to get a PR officially appointed, since all interested parties are protected.
>
> The chief risk is, I think, endorsement of a check by a non-payee. But if all legitimate successors of the non-payee are in agreement, I can't imagine that the check issuer is going to object.
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
> SAYRE LAW OFFICES, PLLC
> 1320 University St
> Seattle WA 98101-2837
> phone 206-625-0092
> fax 206-625-9040
>
>
>
> From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Stuart Ainsley
> Sent: Tuesday, May 05, 2015 1:57 PM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] EIN for Small Estate
>
> Unfortunately, we have three checks to cash that are made payable to the estate of the decedent so BOA is insisting that it won’t cash them unless we set up a bank account for the “estate”.
>
> Stuart
>
>
> <image001.jpg>
> Stuart M. Ainsley
> Attorney
> Law Offices of Stuart M. Ainsley, P.S.1
> 2701 Mingus Drive
> Cedar Park, TX 78613
>
> 512-638-0285 (Texas phone number)
> 206-780-9024 (Washington phone number)
> 512-366-5216 (fax)
>
> mailto:stuart at ainsleylaw.com <mailto:stuart at ainsleylaw.com>
> 1Licensed to practice Law in Texas and Washington
>
> CONFIDENTIAL COMMUNICATION
> This e-mail message is confidential. It is intended solely for the use of the individual named above. If you are not the intended recipient, or the person responsible to deliver it to the intended recipient, you are hereby advised that any dissemination, distribution or copying of this communication is prohibited. If you have received this e-mail in error, please immediately notify the sender by reply e-mail and delete and/or destroy the original and all copies of the e-mail message.
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> From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Douglas Bratt
> Sent: Tuesday, May 05, 2015 3:48 PM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] EIN for Small Estate
>
> The irony, of course, is that the Small Estate Affidavit procedure is designed to allow custodians to hand over funds held in accounts of decedents without putting itself in jeopardy as to possible liability claims for unlawfully having released the funds, so long as the Claiming Successor “crosses the T’s and dots the I’s” in making application for the funds.
>
> I agree with Eric that the statute does not require “the Estate” to be involved, since the whole purpose behind the statute is to set up a procedure whereby NO Estate ever has to be created. So, how can there be an EIN requirement if there is no Estate?
>
> I agree – it has all of the feel of a BOA situation. It seems like each employee is required to partake of “Do it By the BOA Book Pills,” apparently, ingesting them at least hourly, even if “the Book” and the Bank’s rigid rules do not comply with the law. And, don’t forget, everything has to be passed through the Legal Department, and they still don’t always follow the law, IMHO.
>
> Regards,
>
> Doug Bratt
>
> Douglas J. Bratt
> Lawyer
>
> <image002.jpg>
>
> Office: (360) 213-2040
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> From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Eric Nelsen
> Sent: Tuesday, May 05, 2015 11:30 AM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] EIN for Small Estate [text]
>
> I'm guessing that's Bank of America, grrrr.
>
> In any case, the small affidavit process under Ch. 11.62 RCW is supposed to avoid all the probate issues. The custodian of the funds is entitled to hand it over directly to the successor, not to "the Estate."
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
> SAYRE LAW OFFICES, PLLC
> 1320 University St
> Seattle WA 98101-2837
> phone 206-625-0092
> fax 206-625-9040
>
>
>
> From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Stuart Ainsley
> Sent: Tuesday, May 05, 2015 10:34 AM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] EIN for Small Estate
>
> List mates:
>
> I am trying to take care of a very small estate. It has a CD for less than $12,000 and three checks made payable to the estate of $1,700. That’s it. I was going to use a small estate affidavit but the bank is insisting that we set up an estate bank account and provide Letters Testamentary and an EIN for the estate. I think I can convince them that we don’t need the letters but I’m concerned about the EIN. I have applied for EIN’s for estates before but the online program always ask for the County and State where the probate has been filed and the name of the Personal Representative. Has anyone successfully obtained an EIN for an estate without filing a probate? I hate to file a probate just to satisfy some bank manager’s checklist of documents.
>
> Thanks in advance for your responses.
>
> Stuart
>
> <image001.jpg>
> Stuart M. Ainsley
> Attorney
> Law Offices of Stuart M. Ainsley, P.S.1
> 2701 Mingus Drive
> Cedar Park, TX 78613
>
> 512-638-0285 (Texas phone number)
> 206-780-9024 (Washington phone number)
> 512-366-5216 (fax)
>
> mailto:stuart at ainsleylaw.com <mailto:stuart at ainsleylaw.com>
> 1Licensed to practice Law in Texas and Washington
>
> CONFIDENTIAL COMMUNICATION
> This e-mail message is confidential. It is intended solely for the use of the individual named above. If you are not the intended recipient, or the person responsible to deliver it to the intended recipient, you are hereby advised that any dissemination, distribution or copying of this communication is prohibited. If you have received this e-mail in error, please immediately notify the sender by reply e-mail and delete and/or destroy the original and all copies of the e-mail message.
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