post dated check cashed knowing maker died

[oden]

What is the name of your state (only U.S. law)? MASSACHUSETTS

I am the only legal heir to my father's estate. He died in California, I live in Massachusetts. Before his death he wrote his brother a post dated check and mailed it to him. The check was dated for the 20th and my father died on the 10th. His brother knew that my father died on the 10th, but waited until the 21st and deposited the check in his account and the california branch honored the check. The bank was not notified of my father's death. I understand that the bank was not at fault, but what recourse do I have as the only legal heir at law of my father's estate against his brother.

The issue is that this was the only asset and the funds are needed for burial expense etc...

[Antigone*of*Greece]

Originally Posted by oden

What is the name of your state (only U.S. law)? MASSACHUSETTS

I am the only legal heir to my father's estate. He died in California, I live in Massachusetts. Before his death he wrote his brother a post dated check and mailed it to him. The check was dated for the 20th and my father died on the 10th. His brother knew that my father died on the 10th, but waited until the 21st and deposited the check in his account and the california branch honored the check. The bank was not notified of my father's death. I understand that the bank was not at fault, but what recourse do I have as the only legal heir at law of my father's estate against his brother.

The issue is that this was the only asset and the funds are needed for burial expense etc...

I am sorry for your loss, but what makes you think your uncle is not entitled to that money? Your father wrote the check - the check is a promise to pay. The promise has been fulfilled.

[oden]

The issue is...had the bank been notified the check would not have been honored...the promise to pay was for the 20th...the maker died before the 20th...therefore the promise could not be completed...his brother knew he had died at that point the check is no good and belongs to the estate...if he felt entitled to it he would need to put in a claim against the estate...there is a statute that provides for which debts get paid first out of an estate and burial expenses is first. I think it is illegal and unethical to cash a check that was post dated knowing the maker died before the check was to be honored.

Also a portion of the funds came from social security who wants to be reimbursed since part of the funds were for future dates after the death.

[Dandy Don]

Yes, there are extenuating circumstances here, but the major mistake made was that the executor of the estate didn't freeze or close the bank account so that no more checks could go through. It's regrettable that you have no legal recourse. You can inform Social Security by letter about what happened with this money and suggest that they go after the brother to try to collect any monies they think they are owed.

[Zigner]

Actually, the promise to pay is effective immediately. The brother had every right to walk down to the bank and cash it as soon as the check was handed to him and the bank would have done nothing wrong in that scenario either.

[CameronNewport]

Originally Posted by oden

I understand that the bank was not at fault, but what recourse do I have as the only legal heir at law of my father's estate against his brother.

In my opinion, the personal representative of your father's estate may be able to force reimbursement from the brother.

There's a reason a bank is liable if it pays a check 10 days after it has notice of the drawer's death: It's because the payee shouldn't be paid.

In this case, the bank hasn't done anything wrong since it had no notice of the drawer's death, but that doesn't mean the payee was correct to cash the check. His right to cash the check was revoked upon the drawer's death. The underlying debt is not canceled (if there is such a debt), but other expenses with priority must be paid first, such as funeral expenses.