Question about lawsuit winnings from my dad's wrongful death suit.

What is the name of your state? NC

My father passed away in 2001 from asbestos cancer of the lung. My parents have been divorced since 1988/1989. While I was at work my mom took my dad to a lawyer and "she says" that she asked him who he wanted as POA and she said he told her he wanted her. I'm the one that's been there for him since 88/89 not her. I believe she used the fact he still loves her to worm her way in so she could set herself up to get money. HE started a suit against the companies he worked for years ago that exposed him to asbestos. Dad's will states after all his personal and medical bills are paid what's leftover is to be split between his two living children. That's me and my brother. The lawsuit settlement checks are sent to my mom made out to her by the lawyers. According to dad's will who is legally supposed to get the money from the lawsuit?

cdavis88 said:

What is the name of your state? NC

My father passed away in 2001 from asbestos cancer of the lung. My parents have been divorced since 1988/1989. While I was at work my mom took my dad to a lawyer and "she says" that she asked him who he wanted as POA and she said he told her he wanted her. I'm the one that's been there for him since 88/89 not her. I believe she used the fact he still loves her to worm her way in so she could set herself up to get money. HE started a suit against the companies he worked for years ago that exposed him to asbestos. Dad's will states after all his personal and medical bills are paid what's leftover is to be split between his two living children. That's me and my brother. The lawsuit settlement checks are sent to my mom made out to her by the lawyers. According to dad's will who is legally supposed to get the money from the lawsuit?

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My response:

You and brother. Get in contact with the attorney to find out why the check was cut to her. Then, get in contact with your own attorney.

IAAL

Who was the executor of your dad's estate and did the executor know that this money from the lawsuit was going to be paid at a later date? It's hard to know exactly what happened since we don't know all of the details, but whoever paid the settlement money may have made a mistake or could have been persuaded by her lawyers to wrongfully make the money payable to the lawyers and then to your mother. Under normal circumstances, this money should have been made payable to this man's estate and the executor should have been the only one able to cash the check and then the executor should be able to pay the lawyers and your mother, OR the lawyers should be paying the executor and then letting the executor distribute the money as the will instructs, to your mother and to the kids. Something is wrong somewhere.

Your mother or her attorneys probably figured out that her status as a divorced spouse meant that she would get nothing from the estate, so she and her attorneys successfully tried to figure out a way to keep this money from going into the estate.

The power of attorney expired at the same moment the death occurred, so she could not have used this document to request that she be paid.

Have you talked to your mother about this and have you asked her when she intends to give you kids the fair share? It sounds like you are saying she is trying to keep everything for herself and doesn't want to pay you all anything. If she doesn't want to give you kids anything, then you need to tell the executor about this money so that he can make an effort to claim it--it is an asset of the estate that he should be handling (probably all he needs to do is contact the insurance company who made the settlement payments and inform them about their error--hopefully they will probably ask your mother and the lawyer to return the money so they can reissue a check to the executor)--and if the executor can't or won't do anything, then you will need to get your own attorney to handle this.

You have a very strong case (the facts are on YOUR side) and things will most likely work out in your favor!! Best of luck to you, and my compliments to you for standing up for your rights when you figured out that there was a problem. As you have discovered, this is a great message board for helping people get their problems resolved.

DANDY DON IN OKLAHOMA ([email protected])

My mom somehow got my dad to name her as excutor of his estate. Does this mean that my mom, even though she is not legally his wife anymore, is entitled to a share of the money? She's depositing all the checks into her personal account and then splitting the amout 3 ways and then writing out a check to me and my brother for our 1/3 of the check. Since she got herself named as executor of his estate without all of us sitting down to discuss it beforehand, is she legally able to get a share of the money. I think she knew dad would get a lot of money from the lawsuit and talked him into naming her as executor. Is there anything I can do or should I just leave it be to keep the peace in the family?

cdavis88 said:

My mom somehow got my dad to name her as excutor of his estate. Does this mean that my mom, even though she is not legally his wife anymore, is entitled to a share of the money? She's depositing all the checks into her personal account and then splitting the amout 3 ways and then writing out a check to me and my brother for our 1/3 of the check. Since she got herself named as executor of his estate without all of us sitting down to discuss it beforehand, is she legally able to get a share of the money. I think she knew dad would get a lot of money from the lawsuit and talked him into naming her as executor. Is there anything I can do or should I just leave it be to keep the peace in the family?

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My response:

You need to get to an attorney, like yesterday!

Being name the Executor of an Estate does NOT entitle the Executor to a benefit - - except for the "statutory fees" that an Executor is entitled to receive, which would be awarded to her by a judge.

She is NOT entitled to any money UNLESS she was specifically named as a beneficiary AFTER the divorce. If she was named as a beneficiary BEFORE the divorce, then the divorce AUTOMATICALLY cuts her out of the Will.

Get to an attorney before she spends the money!

IAAL

Go to the county courthouse probate court to look at the probate file to find out for sure exactly who was named as executor and confirm whether it was your mother officially (is she telling you the truth about that or not?). If you have looked at a copy of the will it should have mentioned her name in there.

You may want to talk to a local probate attorney to find out what the exact executor fee is, but it will range from between 5% - 7% of the estate, including money received and paid out from the estate. What was the total amount of the settlement? That means she is officially entitled to a percentage of the check when it was first paid to her, then the same percentage when she writes a check to you and your brother.

She is not legally entitled to any more than that percentage, but out of respect you should probably go ahead and let her get the 1/3rd to keep peace in the family (if you decided to sue her for the rest it would probably cause bad feelings in the family and the attorney fees would probably eat up a big portion of the settlement amount).

You may also want to double check with a local CPA or tax accountant to find out whether you owe any state or federal taxes on this money--if I remember correctly, money won in a lawsuit settlement case is not taxable, but it never hurts to find out for sure.

DANDY DON IN OKLAHOMA ([email protected])