Q: My mother and her husband were involved in a class action lawsuit over Chinese sheetrock. The lawsuit dated back 7 yrs+
my mother's husband died 7 years ago. This past month they finally settled and my mom received her settlement check. It's made out to her and her dead husband. So the bank won't let her deposit it. He wrote a will but it was never notarized. The bank told her to go to probate office in county he died in and see what they say. She now lives 4 hours from that county and is in really bad health. Hard to travel. What rights does she have with this check and what steps should she take
A: In these situations his estate is entitled to the proceeds as well, therefore the bank needs a representative of his estate to sign off on the check. The general way to get a representative of an estate is to petition the local probate court to be named as the Executor (if there is a Will) or as an Administrator (if there is no Will). It is a process that would require an attorney and depending on the amount of the check may be very much worth it. There are short form processes available, but it depends on the amount of the check. For example, a summary distribution proceeding is available for funds less than $27,000 (or so). If the check is for $5,000 or less, then a bank may be willing to negotiate it upon the presentation of a small estate affidavit. Most banks have these forms available and it is for situations where someone needs access to funds, but the amount in question does not justify the expense of a probate administration.
A last option would be to go back to the issuer of the check and ask if she could sign an affidavit swearing that she is his only heir and therefore entitled to the funds. It is possible (but honestly not likely) that the issuer may send a new check in her name alone.
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