My ex-wife passed away in 2001. We had a child togeather and at my son's mother funeral folks gave him 5,000.00 or so dollars (the son) My ex-mother in law thinks since the checks were made out to her that it's hers to invest for Max. I believe the money should be given to me his father as I have legal custody. Who's money is it?
State/Country relating to Question: South Dakota
Nothing so far.
the money belongs to the child - regardless of who has Conservatorship over it. it must be placed in an account for the child. it cannot be spent for current expenses. and if the checks were made payable to her then she can open the account and act as conservator.
Why could the funds not be spent for current expenses? What if she can't produce the checks?If you were the father and did not trust the grandma how would you argue the case?
you would need to see what she did with the checks. you would need to see if they were placed in an account - if that happened, then you have no case. if not, then you would need to show that she misappropriated the funds intended for the child's future.
1.If she did put the monies into what they call a 529 college fund which I suspect she might have and the funds by law belong to her and the grandchild is only the Beneficiary and the fund provides that the grandchild has "no ownership" of the funds even after he turns 18 and beneficiary's may be changed at any time by the owner (grandma) does that qualify "ownership" by the grandchild or does the wiggle room she left herself to give the funds to someone else "raise questions?" 2.Since I have filed a complaint with Small Claims and she technically still "owns" the money could I ask the court to force her to put it into an account solely owned by the grandchild?
1.If she did put the monies into what they call a 529 college fund which I suspect she might have and the funds by law belong to her and the grandchild is only the beneficiary and the fund provides that the grandchild has "no ownership" of the funds even after he turns 18 and beneficiary's may be changed at any time by the owner (grandma) does that qualify "ownership" by the grandchild or does the wiggle room she left herself to give the funds to someone else "raise questions?" 2.Since I have filed a complaint with small claims and she technically still "owns" the money could I ask the court to force her to put it into an account solely owned by the grandchild.
no. there is no wiggle room in that account. the intent was the money would be for your son. it is his money.
a court will not put the account into the minor soley - but you can certainly ask that there be joint owners and add you as a conservator, too - double signatures need for any withdraws. and that is merely for check and balance purposes.
Sam, South Dakota codified law 29a-5-102 states a "conservator" is appointed by the court. That is not the case here. Does that make a difference.In relationship to Max (grandson) I see no "legal" connection between him and his grandma. I would argue that even though the checks were written to grandma that that was only a vehicle to get the funds to Max and she has no "legal" connection to him while a parent is alive and she should have taken the care to get Max's funds to the proper legal conservator, custodian, parent IE me. As you said it's Max's money and I'm wondering how grandma gets the "right to control it" when there is a parent alive. (FYI) Max was 23 months at the time of his mothers funeral.Thanks Sam we are getting close!
well, she can open the account, as you state - i used the term "conservator" apparently with a broad brush. custodian or whatever they call it. and it should be ordered by a court. the only claim she has is the checks made payable to her.
your argument is good that there is a surviving parent and the Grand was the "vehicle" - as i stated, there should be, at least, two adults on the account for checks and balances. two adults should need to sign to have any of that money removed for any reason. that is a viable argument -
keep in mind, that you will probably need to call in some witnesses - check writers - who gave the Grand the money to testify to what the intent was when they did that. we know what it was, but she can legally say the checks were made payable to her, etc. so think about that.
20 years practicing law
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