[WSBAPT] Insurance check issued to deceased person

Fri Dec 18 20:59:57 PST 2015

The small estate affidavit cannot be used with real property only personal property.  RCW 11.62.010.  The person signing the small estate affidavit must claim that they are entitled to the property or that the other heirs have given permission for the person to obtain the monies AND that all debts of the decedent have been paid for as well.  Not sure why the successor doesn’t want to open the probate, get appointed as Administrator, obtain the letters and handle the probate properly.  The Administrator can then transfer the RE pursuant to intestacy laws. Even if you can convince a bank to cash the check, sounds like there are other heirs entitled to the monies.

Dalynne Singleton
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Douglas Bratt
Sent: Friday, December 18, 2015 6:22 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Insurance check issued to deceased person

I think you will have better luck trying to convince the Insurance Company to re-issue the check than you will getting the bank to cash the check or to deposit it.  It might be easier if the insurance company is a Washington insurance company, although I was recently able to convince one out-of-state insurance company to re-issue a check, making it payable directly to a claiming successor, by jumping through the hoops of the Small Estates Affidavit and then carefully giving the insurance company copies of the relevant statutes, etc.

I think a bank will only honor the Small Estates Affidavit process if the funds are already on deposit in the bank, prior to the death of the Decedent.  I don’t think the Small Estates Affidavit procedures would confer any rights to your client, as a claiming successor, that would give the bank any assurance that it would be appropriate to cash the check.  After all, if the drawer or the drawer’s bank dishonors the check, the bank is stuck with paying back the funds to the drawer’s bank when it has already released the funds to your client.

Yes, the Small Estates Affidavit provides a convenient way to deal with estates worth less than $100K, but, boiled down to its essential elements, the Small Estates Affidavit procedures are, in reality, a way to assure banks (and insurance companies, etc.) that they can safely release funds (if the statute is followed by the claiming successor) without fear of liability claims of other “successors” (other than the claiming successor), perhaps brothers or sisters of the claiming successor.

On a side note, I understand that your client doesn’t want to file probate, but how in the world will the real property get out of the name of the Decedent without the filing of a probate, anyway?  Seems like silly thinking on the part of the client, to me.

Good luck.

Regards,

Doug Bratt

Douglas J. Bratt
Lawyer

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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] On Behalf Of Jennifer Johnson
Sent: Friday, December 18, 2015 4:48 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Insurance check issued to deceased person

Good afternoon,

Client recently received a check from an insurance company that was issued to the estate of her deceased mother.  Her mom passed away four years ago and left a piece of real property and an insurance policy covering the real property, neither of which were ever transferred by the heirs.  She took the check to the bank and, not surprisingly, the bank wants letters testamentary, an EIN for the estate, etc.  Also not surprisingly, client does not want to probate.

I am wondering if, provided that mom’s estate qualifies, the small estate affidavit might be used to get the bank to either cash the check or let client deposit it?  Or to get the insurance company to reissue a check to the successor instead of the estate?  Or perhaps there is a simpler solution that my Friday afternoon brain isn’t thinking of?

I appreciate any advice or experience you all may have.

Thank you,

Jennifer

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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