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jc1007 · Mar 28, 2009, 05:17 PM

My father is deceased, mother still alive, a settlement check was received made out to "Mother..., Estate of Deceased Father". Does my mother receive the entire check or should it be split between my mother and her 3 adult sons?

Fr_Chuck · Mar 28, 2009, 06:08 PM

What was the settlement for ?

In the estate how was the rest of the estate settled, was there a will.

Why does the 3 adult sons believe they should get part of it ?

jc1007 · Mar 28, 2009, 07:19 PM

It was a class action law suit. There was no estate or will. My father died 7 years ago. Just received settlement in class action law suit.

JudyKayTee · Mar 29, 2009, 07:34 AM

What State? I am quite surprised that the Attorney didn't clear this up BEFORE cutting the check.

sideoutshu · Apr 1, 2009, 12:18 PM

Well it was probably made out to your mother "as administratrix of the estate of" father, assuming she was appointed to run the estate. If your father died with no will, there are laws, depending on the state, of intestate succession.

Here in New York, I believe the Surviving spouse gets 50% with the remainder split between the children, but I may be wrong. I actually posted the actual law on this a year or so ago, you can find it by searching my prior posts.

JudyKayTee · Apr 1, 2009, 02:17 PM

Originally Posted by sideoutshu

Well it was probably made out to your mother "as administratrix of the estate of" father, assuming she was appointed to run the estate. If your father died with no will, there are laws, depending on the state, of intestate succession.

Here in New York, I beleive the Surviving spouse gets 50% with the remainder split between the children, but i may be wrong. I actually posted the actual law on this a year or so ago, you can find it by searching my prior posts.

Yes, you are wrong about the split in NY going 50% to spouse and remainder split between the children.

Among other problems if it were by law disinherited children would stand to collect - I see all sorts of problems.

I have never seen a check cut 50% and the remainder split.

sideoutshu · Apr 1, 2009, 02:41 PM

Originally Posted by JudyKayTee

Yes, you are wrong about the split in NY going 50% to spouse and remainder split between the children.

Among other problems if it were by law disinherited children would stand to collect - I see all sorts of problems.

I have never seen a check cut 50% and the remainder split.

Obviously banks don't pay half a check, that is just silly. My answer presupposed based upon the op's wording that the mother had been appointed to administer the estate. In which case the check would be cashed IN FULL by the estate, and then divided thereafter pursuant to the below:

Originally Posted by sideoutshu

In NYS, the laws of intestate succession are applied when someone dies without a will. they dictate how the estate is to be split up as follows:

EPTL 4-1.1

Descent and distribution of a decedent's estate

The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:

(a) If a decedent is survived by:

(1) A spouse and issue(this means children), fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.

(b) For all purposes of this section, decedent`s relatives of the half blood shall be treated as if they were relatives of the whole blood.

(c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.

(d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law.

(e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.

JudyKayTee · Apr 1, 2009, 02:51 PM

I have no idea what you are referring to about banks and being silly - I made no reference to a bank. I was making reference to a check being cut (and I presume a bank isn't paying the settlement).

I believe a lawsuit, depending on how it was placed in suit, is outside the law you have posted.

sideoutshu · Apr 1, 2009, 03:01 PM

Originally Posted by JudyKayTee

I have no idea what you are referring to about banks and being silly - I made no reference to a bank. I was making reference to a check being cut (and I presume a bank isn't paying the settlement).

I believe a lawsuit, depending on how it was placed in suit, is outside the law you have posted.

A lawsuit is an asset, plain and simple. From the perspective of a Surrogate's Court, it is viewed exactly the same as a bank account. If the children are entitled to part of the estate, they are entitled to part of a settlement check if it is indeed made out "to the estate of: father".

The only wrench in the works is if a derivative claim (ie: loss of services) was brought on behalf of the mother, in which case she would be entitled to all of the money for that claim. I think it is a moot point, as I doubt a class action settlement check that comes through the mail is going to rise to the level where its division would be at issue.

JudyKayTee · Apr 2, 2009, 06:02 AM

And I think the answer is to advise the OP that based on the dollar amount he/she should consult with an Attorney about the possible requirement to take the estate either back to Probate - or to Probate in the first place. A live and in person Attorney needs to look at this.

Without knowing the details of the suit and settlement I don't think an accurate answer can be given.

EDIT: Just got off the phone with a local Attorney (business call, another subject) and she said that SOMEONE (most probably the Attorney representing the OP's father) HAD to have been appointed to represent the father's interest in this matter because the father is deceased and can no longer consent to the settlement offer/figures. SOMEONE should have covered this at that time and if no one did - who gave the info on how to cut the check? - it should be addressed WITH THE ATTORNEY now.