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RobertJDFL
RobertJDFL, Attorney
Category: Estate Law
Satisfied Customers: 10260
Experience:  Experienced in multiple areas of the law.
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My dad recently died. He did not have a will. Since his death,

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My dad recently died. He did not have a will. Since his death, I received a check for a settlement from a mortgage co. that inapprpopiately foreclosed on his home two years ago. The check is made out to him. How can I legally cash the check?
Submitted: 1 year ago.
Category: Estate Law
Expert:  RobertJDFL replied 1 year ago.
Thank you for your question.

My condolences on your loss. Since probate laws vary by state, can you tell me what state your father passed away in, and how much the check was for?

Customer: replied 1 year ago.

My father passed away in Indiana, the check was for 3 thousand dollars.

Expert:  RobertJDFL replied 1 year ago.
Thank you for your reply.

Normally, the only way for you to cash this check would be for you to open a probate estate in Indiana. That would involving petitioning the court to have someone appointed executor/personal representative of the estate, possibly having to post a bond, prepare an inventory of assets, publish a notice to creditors, etc. While not necessarily a complex process, it is an involved one, and the costs and expenses involved would eat away at a large portion of that check.

However, there may be an easier alternative, hence the reason I asked what state and the amount of the check. Smaller estates do not necessarily have to go through probate in Indiana.

Small estate affidavits can be used in Indiana to transfer property of a decedent without the necessity of formal probate and the appointment of a personal representative. A small estate affidavit can be used in both testate situations (where there is a will) and intestate situations (where there is a not a will).

 

In order to use a small estate affidavit, the gross value of the probate estate, less liens and encumbrances, can not exceed $50,000.

 

Also, you must wait at least 45 days from the date of death before you can utilize a small estate affidavit. The affidavit looks like this --though I would tell you to check with the county in Indiana where your father passed, as they may have a specific form, or, even better, having a local attorney in the area draft one for you. You fill out the form and then sign it in front of a notary public. It's a good idea to file it in county court where your father lived -you'll need to present the signed affidavit with a certified death certificate). Once you have the affidavit, that's it - you should be able to take the affidavit to the bank to cash the check.

Note that since there is no personal representative/executor with this method, you would be expected to distribute any assets collected via the affidavit to other heirs (if any) in accordance with the terms of the Will or state law, in the absence of a Will. Additionally, if there are creditors of the estate, you will be responsible for paying them out of these funds.

RobertJDFL, Attorney
Category: Estate Law
Satisfied Customers: 10260
Experience: Experienced in multiple areas of the law.
RobertJDFL and 2 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

If I obtain this affidavit and cash the check, does this make me responsible for all debts of my dad.

Expert:  RobertJDFL replied 1 year ago.
Not personally responsible, no. The estate is liable for his expenses, I'm sorry if I wasn't clear. What I was saying was that if there are debts in the estate, you cannot simply just cash the check and use the money - you do have a responsibility, since that money is part of the estate, to use it to pay creditors.
Customer: replied 1 year ago.

Thank you very much for this information. Will this information be sent to my email for me as a reference for me to use?

Expert:  RobertJDFL replied 1 year ago.
You know, I'm honestly not sure how customers are notified after I answer questions! I would suggest you copy and paste our conversation into a Word document, then save it.
Customer: replied 1 year ago.

Thank you very much.

Expert:  RobertJDFL replied 1 year ago.
My pleasure. Don't forget to leave me a positve rating if you haven't already done so, as it is the only way I am compensated for my time. Thank you.

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