Bank account theft prior to probate.

[Richard 545]

I thank you all for your input. I am also fully aware of how forums work. @67 years old, I have seen my share. I am fully convinced that my attempts to explain the situation in the hope that someone will have incite as to a possible path to proceed may or may not be understood by those reading it from the other end. Last night I went to one of those "Internet" attorny's and for $38 I was told "Maybe". $7.80 per letter didn't seem like an economical way of deciding what the best course of action might be. So I am here. I have no dog in this fight other than I told my brother that I would do to the best of my ability act as his PR, and then his Exec. I am not a divisee in the will or a beneficiary in any way. In Oregon, PR and Exec are two completely different animals. PR is simply who is nominated in the will by the deceased to address the affairs of the estate. Not until the PR is recognized by the court, and issued the letter of Testamentary, does the PR become the Exec. There are many old wives tales concerning the idea that a PR and an Exec are one and the same. Absolutely not true in many instances. However, the belief by many that it is true has allowed me to do much more with the CLUSTER I found myself in when addressing my brothers estate after a sudden death than I would have otherwise been able to do without spending a fortune in monies that belong to his heirs; not me.

Having said that, I had no idea concerning Set-off. I am darn sure, as this has unfolded, that the Credit union certainly did. Lenders have more attorney's than God.
They say that you don't know what you don't know. What I am trying to explain here is that If they had the authority to do what they did, why didn't they just do it? Why did they purport to accept the freeze letter knowing I didn't have any authority except to give them cover as to denying others to get paid from their auto pay provisions? Why would they go through the motions except to insure as much as they could that they would get maximum benefit for what they knew they were going to do. If they had a SOUD provision, why the charade. Why would they allow me access to his online account statements by changing the phone number access to my phone number unless they wanted to insure that I could see that the accounts were stable, while running up late fees that did not show up on the statements until the Son I subordinated the PR status to got the LOT from the court 3 days ago and all of a sudden, the accounts were emptied and he was told that they comendered the funds.
As has been said countless times in the 600 or so threads I have reviewed here, not one of which addresses anything even close to this situation, it isn't or may not be worth persuing, well maybe the credit union knows it too. How many of you throughout your experiences have seen people spend thousands to have the perp when it was all over say, "OOPS, I screwed up. Here is your $100 back. Sorry".

I am not asking for legal advice here. They say the legal advice you get is worth every penny of you paid for it. I simply would like to know whether any one has ever seen something like this before. What I read about the Credit Card exemption to the right of set off, tells me that there is something wrong here. Otherwise, if the credit union could have done this in Dec, they would have. If they were on autopay, they would not stop it for their own account based on a letter that had absolutely no power in law. But they did. Why go through the gyrations of conceling the interest accruals on an account that they could have commendered any time they wanted? Why would they pay someone and then when called on it, put it back in? If someone here has any ideas, please state. If someone wants to say as I have seen here probably 100 times, "You didn't give enough information", please state what information might be missing. THATwould be helpful. If you need more info, do you know what you need or is it just a cop out? I am here because I need some help. I am trying to help the son I turned this all over to after thinking I had done all the ground work to allow him a smooth conclusion. This is not my first Rodeo here. I am still working an estate of my other brother who was killed by a drunk driver 2 months before this one died. The kids in that situation have got things so screwed up, they may just lose everything.

So please,; If you have some relevant input, I would certainly appreciate it. If your intent is to simply see how many posts you can do in a night, there are many others on this forum who might appreciate that. Thank you for your input.

 

[LdiJ]

I am sorry, but we can tell you no more than we already have. Credit Unions generally write their loan/credit card contracts to include the right to offset any debt by any monies available in other accounts when someone passes away or defaults on loans.

So, its nearly guaranteed that the Credit Union had the right to do what they did.

 

[HRZ]

I hope by now you are the officially appointed executor with powers to act .

it's a slim point, but your costs and executors fees come off the top of the pot ahead of just about every other estate creditor .

I have no idea if the CU and its contract got it right to offset as thy did , but I support your quest to unwrap the details. I ran into a very large bank doing things their way when my mother passed ; I found a senior ( the top person in that division) regulatory official who quickly "suggested" the bank got the issue wrong , and a senior vp for that bank decided to bend not fight . The executor in your example might want to check with any relevant regulatory authority ..

 

[Richard 545]

HRZ YOU GET IT. The issue here, as this thread has unfolded, has switched from how CAN they take the money off the top to how DID they take the money off the top. Some of the inputs here have allowed this to transpose from the initial premise to the secondary one. For this I thank the forum. With two estates going at the same time, I subordinated the responsibility for Executorship from myself to his step son, who appears fully capable of going forward with the estate as it stood when I did it. The court accepted the subbordination and He was made exec by the court. However, I had no idea this one was coming. I feel responsible for not knowing of this and also because I accepted my brothers request to be his PR, feel that it is my responsibility to do the best I can to facilitate the process to the best of my ability. My desire here is to give the current Exec as much ammunition as I can to do battle with the CU if he chooses to do so. This is what I agreed to when I accepted my brothers request, and I have done what I can do. However, no one could forsee 2 brothers dying within 2 months of each other, each under completely different circumstances and each with totally different issue sets to address. 10 years ago my wife and I worked a $1m estate for her parents. It went smooth as glass. Then as now, finding honest lawyers is right up there with finding Yeti bones or compassionate funeral directors. They are out there, but finding a good one is difficult at best. Having said that:

HRZ, your advice is sage and greatly appreciated. The only thing I have asked of the estate is repayment for the funeral I paid for and the money I paid to the Hospice home care assistant not covered by Medicare or the VA under the POA prior to his death. That is what I meant when I said that I have no dog in this fight. The impetus now is to attempt to keep the CU from helping themselves to the estate funds ahead of all others with what might very well be some fairly screwy circumstances. Like I said before, If they could have done this in Dec when my brother died, why didn't they do it and why did this charade even take place if everything was on the up & up?
You have given me valuable advice and I thank you.
END.

 

[Dandy Don]

The debt was a valid debt and they had the right to collect it when they did. Were they supposed to wait and see that perhaps there was not enough money in the estate otherwise and be left unpaid? Is this estate large enough to have been able to afford this bill if the credit union had not already deducted it?

 

[Richard 545]

Wow. Didn't know that there was someone out there who knows everything. Thank you for your input , but you can go back to mom's basement. The adults have this one under control.

 

[LdiJ]

Wow. Didn't know that there was someone out there who knows everything. Thank you for your input , but you can go back to mom's basement. The adults have this one under control.

We are all volunteers here and being rude and snarky with us makes all of us disinclined to continue to help you. On top of that, you are the difficult type of poster who refuses to believe the things they don't want to hear. You should pay an attorney to advise you.

 

[Richard 545]

I lost my head. Sorry about that. So tell me Don, exactly how do you know whether the CU in question, who has not been identified, was right in doing what they did? Please be specific. LdiJ, please help Don provide the specifics as to his conclusion that the CU in question was right and please help me out with your vast experience concerning Reg Z of the TILA. That would be most helpful.

After my last exchange with HRZ, I ended the thread. He/She gave me useful information to ponder. I thanked him/her and will proceed. Along comes Don. He KNOWS that the CU in this case is totally right without having anything to say other than sounding like a "My Pillow" commercial for a CU when he has no idea whether they are right or wrong. He simply appears to be one who gets off ripping on people while sitting behind a keyboard spewing his dictums without adding anything to the conversation of any particular value other than. "I'm right, You are wrong, simply because I said so". You, on the other hand, are worse than Don in many respects. You act as tho this is a club and if someone doesn't react appropriately to one of your Clubbies in a manner appropriate to YOUR sensibilities, You have the power to brand them as You see fit and that is that. I have seen many times that WE is used primarily by those who have not much to add to the situation presented. Sounds like a Lib. If you are here as a volunteer to help others who come to you for help and are willing to impart your experience coupled with facts to support your advice, God Bless you. But just remember SPORT, many times you are trying to explain what a cloud looks like to a blind person. Just because you aren't good enough to do it, doesn't make the blind person any more blind or stupid or arrogant, or rude, or snarky because you are not able to impart an accurate word picture. I have always found that if one can not stand behind their words, they shouldn't say them. But please don't use the term volunteer to hide behind the fact that the only thing you did here today is demonstrate that somehow you were elected "Forum Cop" and you felt the need for me to know this. Being a volunteer does not give you the right to judge. It only gives you the right to volunteer. What you do with it is totally up to you. Keep in mind, that people like us who use forums for the purpose of gathering preliminary information have seen many like you too. So, if you have any experience with Credit Unions, set-off rights, or TILA, I'm all ears. If you don't, please quit wasting my time. Hopefully, that was polite enough for you.
END#2

 

[justalayman]

Wow. Didn't know that there was someone out there who knows everything. Thank you for your input , but you can go back to mom's basement. The adults have this one under control.

By chance do you have anything speaking of an executor. Everything official that I find speaks only to a personal representative.

And a person named in a will has no legal authority to do anything until they are granted the appointment as a personal representative

https://www.oregonlegislature.gov/bills_laws/ors/ors113.html

 

[justalayman]

HRZ, your advice is sage and greatly appreciated. The only thing I have asked of the estate is repayment for the funeral I paid for and the money I paid to the Hospice home care assistant not covered by Medicare or the VA under the POA prior to his death.

You file as a creditor of the estate.


As to the right of a set off. Have you read all contracts with the credit union? You need to start there. It is very common a credit union has and exercises a right to set off. Since your father owe them money (for the credit card) they get to balance his accounts and pay out any positive remainder to the estate. If there is a negative balance they have a right to file as a creditor of the estate.
This is a general statement but it is a very common situation

 

[LdiJ]

OP, you should review the information here:

https://thatcreditunionblog.wordpress.com/2015/08/17/rights-to-set-off-from-a-credit-unions-account/

I might be more useful to you.

 

[justalayman]

That’s an nice write up you linked. It supports my advice that the op needs to read all the associated contacts the decedent has with the credit union.

 

[Richard 545]

By chance do you have anything speaking of an executor. Everything official that I find speaks only to a personal representative.

And a person named in a will has no legal authority to do anything until they are granted the appointment as a personal representative

https://www.oregonlegislature.gov/bills_laws/ors/ors113.html

Thank you for your input. The way it was explained to me by the Jackson County Clerk was that in Oregon, a Personal Representative is that who the person nominates in the will to address the issues of the estate. At that point, the PR has no specific authority other than to gather what ever information he/she can for presentation to the court to secure a Letter of Testamentary. This could include whether the decedent had real property in excess of $200,000 and personal propertl in excess of $75,000. This can also be used in the application whether the decedent had outstanding monies owed or real or personal property held by others. The court then, once presented with proper declarations and application, determines whether the will is valid, whether the assets are confirmed and that they are either under a certain value as to apply to a simple probate or exceed as to require a full court supervised probate proceeding. The last thing done @ time of application is to determine whether the individual appointed on the will is actually the person who will assume the duties of executing the will provisions (executor) or the court assigns someone else who is not on the will (Continuation of a Personal Representative). It seems to make a difference to the court in reference in that They call it an exec if it is a will designated person addressing a "simple probate" vs a Personal Rep when addressing either a court appointed PR and/or issues involving admin of a regular court supervised full probate. The terms swap around throughout ORS92, 96, 113, 114, and 115.

As to the issue of authority, without being too wordy, I'll briefly explain what we did.
1. My brother went into the hospital for a simple operation. He was as cogent as you or me. If anyone has heard of POCD, it is a malady primarily brought on by too much anestesia given to a person with several triggers such as heart problems, respiratory issues and just old age. My brother (Steve) had all the triggers and came out of surgery as a functional vegetable. He died 2 weeks later. I who live 700 miles from Steve faced a heck of a delema in that I had no idea his bills, his accounts, how things were paid, did he even have a burial plan etc. I could not file as PR/Exec with the court until I could establish his real & personal property totals, what he owned, etc. The house was valued in June @ $197,600 very close to the high limit for simple probate. I knew that a full probate was way past my capabilities. I also knew that the fact that just being named on the will didn't mean spit. However, as I attempted to sort through the maze, I found that a very many people who should know that, didn't. Some did, but took pity I guess on this schlub trying to work through this and allowed me certain liberties once the situation was explained. Some knew it and wouldn't budge. Steve had JUST refied his house so if I could get it repo'd, problem solved. He had no equity (100% value refi), BUT, most of the bills were auto deducted either from his Credit Union accounts (yep THAT CU) or his credit cards (some of which were on the card from THAT CU). I couldn't let the insurance, car payments, car insurance etc continue to be paid etc etc, so I generated the letter freezing the accounts. To my surprize, they asked for a will, and a death cert. They received it and all was well. Accounts frozen. I even turned in the car to THATcredit union because no one, ( the two heirs) wanted it and I was not even in the will so I had no claim to anything other than to be PR/EXEC when the time came to actually file. The CU sold the car within a week and without any doccumentation at all as to how much it sold for, whether any residual was applied to anything etc. I should have been alerted to something here but I was not. So basically at this point I was winging it until I could get the house into forclosure. In Feb, I contacted a realtor in his city who said that the value of the house was increasing @ approx 5%. Ordinarily good, under the circumstances BAD. Busts the high limit for real property and simple probate. Yada Yada Yada. However, the CU even went so far as to stop payments from the accounts for the house AND for their own credit card that was on auto pay from his accounts. Hot Damn Man, I was in tall cotton. As you can tell when this thread started, and how it changed once I was made aware of Right of Set-off, what was making sense at the beginning started making less and less sense concerning what the CU had allowed me to get away with and what they actually did by seizing his funds and when. A new reality began to set in. This has been discussed several times in this thread.
As to my recoup, not a problem, I defered the assignment to his son, who is the alternate in case I decline, which I did, (further explained previously)He filed with the court Monday and when he went to rerieve the account funds, found that the CU had taken them.

As far as my recoup, no problem and no issue. My reimbersements come long before other creditors.

The credit union has not provided any credit card agreement info as of yet.

I understand that under normal circumstances, the CU could do what they did. However, the way they did, what they did, and when they did it raises red flags.
1. Why would they accept my brothers will, in fact a COPY of his will as justification for freezing accounts.....including those already authorized to pay his CU card by my brother prior to his death from their own CU?
2. Why would they make a payment to a creditor AFTER the date of the freeze letter, and when called on it, put the money back in the account?
3. Why would they allow his log-in info for his on line banking to be transfered to my phone numbers?
4. If I had so much authority @ this CU, why was I never given one single paper concerning his accounts being in arrears or that no late penalties were ever shown on his accounts?
5. there was a set-off upon death, why the silly games? They didn't take the money until many months after Steves death.

Should these issues not exist, I would recommend writing the whole thing off to My Bad. But they do exist and once made aware of set-off and referencing Sec 169 yada yada, there are some real questions as to the validity of what they didh Zigner and HRZ gave some valuable info and I am in the process of transfering this info to Steves son, (who is now the official PR/Exec) recognized by the court and with LOT in hand. His going to the CU is the only reason we were aware of what had happened. Again thank you for your inputs.

 

[Richard 545]

Follow-on to #28. To address where I'm going here, based on what I have seen, It would appear that the CU knew what they were going to do. I told them when I was down there in Jan, that probate probably would not open until Jun or July according to the VA's auctioning off the house. The branch manager, who is all that I would deal with, seemed quite interested in how I was doing what I was doing and why. Didn't think anything of it at the time. But in retrospect, here is a manager, in a town in oregon with lots of houses priced around the tipping point for small estate cut off. lots of people dying, and he had never heard of someone doing what I was attempting? The CU took the car back and sold it with only my signature on a titled vehicle. I had no authority to turn in a vehicle whose payments were up to date. But I did, and they sold it before the payment was even due. Many mixed messages here. As stated previously, Had no reason to even see it coming. If they did it with a so@death they would have long before they did and without the intrigue. After their being made aware of my plans, and further research of the TILA, it states that generally unusual charges to a credit card account can be challenged for 90 days after first made aware or first show up on statement. If they weren't sending statements, and I had no reason to check them with several months of no changes, fill in the blank. What ever the case, The exec and I will certainly drill down on this situation. If our situation is anything like HRZ's example, it would explain a lot. I will let the forum know.

And for LdiJ. My apology's for my transgression and thank you for post 26. Very valuable info in the link. Thank you

 

[justalayman]

There can be no personal representative until a court appoints or accepts the nomination of such. Prior to that there can be a special administrator but that requires a courts action as well.

A bank will freeze an account upon notice of the account holders death. It matters not who informs the bank. It is standard procedure to freeze all accounts upon learning of the death of the account holder.

Until you were appointed PR you had no authority to do anything with your brothers estate.

1. Why would they accept my brothers will, in fact a COPY of his will as justification for freezing accounts.....including those already authorized to pay his CU card by my brother prior to his death from their own CU?

Because that is the proper action. Anytime anybody that holds a bank account dies, the bank will freeze the asset.

2. Why would they make a payment to a creditor AFTER the date of the freeze letter, and when called on it, put the money back in the account?

It appears they made a mistake and corrected it.

3. Why would they allow his log-in info for his on line banking to be transfered to my phone numbers?

If it was after you were appointed PR, it would be because as PR you would have control of his account

4. If I had so much authority @ this CU, why was I never given one single paper concerning his accounts being in arrears or that no late penalties were ever shown on his accounts?

Did you ask?

5. there was a set-off upon death, why the silly games? They didn't take the money until many months after Steves death

No idea. You could ask the bank.