Access To Death Benefit As Conservator For Minor Children. Hardship Need

[Daringdeb]

What is the name of your state? Colorado
My Ex-husband passed away Nov. 2002. I was named beneficiary on his life policy. The policy was issued and maintained in Co. He did not remarry prior to his death. After I submitted the claim, (which I verified with two agents verbally that I was named beneficiary) I received a letter stating that under Tx. law(the state in which my ex-husband died) my divorce decree must have a clause saying that I would remain beneficiary after divorce) I was able to quote to the insurance company from the board of insurance in Tx. and Co. that state laws apply to where a policy is issued, not where a person dies. But alas! There is a similer court rule in Co. I had to file for guardianship for our 3 children, so that I could receive the funds on thier behalf. The court ordered the funds to be in restricted accounts. The court clerk erred on one form and forgot to order the restriction on one of the accounts. I decietfully used those funds(in my children's best interest) to purchase a vehical and pay utilities and loans from family that had been helping to support us. Our home is in forclosure and I am currently un-employed. I need access to these funds and I would like to file a motion to have the restrictions lifted. How do I answer to the courts about the funds used and will I be able to have access to the funds by filing a motion? I have not submitted an accounting to the courts as of yet. I am really having a hard time with the fact that the courts need to be involved at all. I am the sole parent and I feel that I know what is in the best interest of my children. I could understand if this was a great amount of money. The total benefit was $50,000.00. I currently have our home up for sale, I was forced to file bankruptcy to forstall my sale date. If the home does not sell within 60 days, I will receive no monies nor do I have the funds to rent or purchase another. My ex was unable to pay support during the last year and 1/2 before his death due to his illness. I lost my job because I hired an attorney to represent my ex as my employer dropped him from the health plan and did not offer cobra while he was terminally ill. I was fired after retaining the attorney and while I was on a medical leave. I guess my argument would be that I have raised these children from birth and without child support for the last two years and I feel that I am perfectly capable without the courts interferance to accsess these funds and continue to take care of my children without having to answer to the courts. I wonder if they would be more willing to allow me access if I apply for food stamps, AFDC, Medicare and housing through the state. Hopefully it doesn't come to that. I'm open to any and all advise. Thanks

 

[Dandy Don]

My sympathies in what must be a difficult situation for you.

You gave no indication as to why the court ordered the restricted accounts in the first place--was there any indication in the court records or any explanation from the judge?

It would be in your best interests to provide an accounting for the money you already received due to clerk error, since it would show you as an honest and forthcoming person at least able to properly account for the monies you had access to, and if you didn't account for them it would look as if you had something to hide and would falsely imply that you misspent the monies for wrong purposes--it looks as if everything you spent the money for was justifable.

It would be a good idea for you to go ahead and apply NOW for the food stamps and all other benefits you are eligible for so that you will not be facing further hardships if the monies and the house sale don't come through in timely fashion, since you can't absolutely count on the restricted account to be lifted soon (court proceedings DO take time).

It is reasonable that you are upset about "court interference" but please don't make the mistake of airing your complaints verbally so that the judge could hear you say that--just keep it to yourself. Your hardship status provides you with an excellent defense and the judge/court would most likely be sympathetic to your petition. Maybe you will even be lucky enough to get a different judge this time.

DANDY DON IN OKLAHOMA ([email protected])

 

[Daringdeb]

Thanks Dandy Don for your advise. I do apologize for being so long winded and off the point with my inquiry.
I'm going to take your advise and swallow my pride and apply for public assistance. There was no specific reason for the restriction on the funds. The judge did comment that it was in my best intrest and if funds were accessed the bank would be liable not me. ???? I made him aware that our home was in forclosure and that we were at risk of losing it. He commented that I should notify my lender and let them know that I would have the funds. Problem was that by the time I received the funds and the bank hold came off, my sale date had passed. I am at the end of my redemption period, thus the main reason I filed Chapter 7.
I can justify what was spent as being in the best interest of my children. We needed transportation.
I thought that I would write a letter to the judge pleading my case, when I do file the motion. I guess I'm a little concerned that I violated the court order concerning the restricted account that I accessed. I did read that it was eaiser to gain access on a death benefit especially if the benefit came from the main provider for the family.
Do I have any legal argument as far as the proceeds paying me for unpaid child support and maintenance. Afterall that is the main reason I am in this situation.
I paid for cremation and services for my ex. I also spent three weeks in Tx. prior to and after his death. My kids needed to be with thier dad. Can I ask that I be reimbursed for those expenses as well?
Again thanks for your reply and advise. I welcome anymore you might have for me.

Debbie

 

[Dandy Don]

Yes you do have valid legal arguments. The unpaid child support you should have filed a claim against the estate so that if the estate had any assets, you could have been paid from those assets. Same thing with the cremation and funeral expenses--you are entitled to reimbursement since the estate was supposed to pay for these.

Writing a letter to the judge will not be accepted, but it might be a good idea to write down your thoughts beforehand just so you will know what you are going to say. Your personal verbal testmony just honestly explaining the situation is going to be the best way to go and also honestly answering any and all questions that might come up. I don't know whether or not you violated the court order in regards to accessing the account, but you probably did--under the circumstances you can honestly plead that it was the clerk's error but just honestly confess that you do realize it was improper and incorrect to do so.

And also ask the court, just for your own personal information, why are these types of accounts restricted? Just to see what kind of explanation you will receive from the court.

 

[Daringdeb]

Thanks again Dandy Don.

Unfortunatly my ex did not leave an estate. He lost everything prior to his death. Correct me if I'm wrong. From what I've researched I was under the impression that Life Insurance proceeds are excluded from an estate. Is that correct? If so would I still have a claim on the benefit for child support, expenses ect.?

This whole thing was probably a blessing in disguise. My bankruptcy attorney has informed me that because the funds are in the childrens name that it is excluded from my assests and therfore will not effect my bankruptcy. Also that because the vehical was purchased with the childrens funds that it would also be excluded as property. I guess if I had receiced the funds in my name that it could have been an issue with creditors ect.

The irony of this whole thing is that I am being billed for all the medical expenses that my ex incurred. I know legally that because we were divorced I'm not liable for those bills. I've been to court twice already with creditors trying tp place judgements. I went ahead and filed the medical expenses with my Chapter 7. I was the primary insured through my employer. Due to thier error in not dropping him when I notified them of my divorce the insurance company received all monies back from the medical providers that had been paid. It was a rotten deal. They dropped him in June 2002 and still my ex employer maintains that they we're not aware of my divorce. The whole deal was conspired by the human resource rep and the store manager to save their own butts. I was fired I feel in retalliation for retaining the attorney for my ex. since my employee record was clear of any previous infractions. I worked for this employer 11 yrs. I would love to see them exposed. I have a list of former employees that had similer issues with the same rep, so I can prove a pattern of incompetence with the rep. I could bring forth witnesses that it was common knowledge that I was divorced and that the rep lied. I believe that the manager could be held liable as well since she had knowledge of the reps incompetence. I know I'm probably beating a dead horse at this point. The injustice of it all just makes it very difficult to deal with.

I will keep you informed as the saga continues. Thanks once again. I do appreciate your advise and insight.

Sincerely,
Debbie

 

[Dandy Don]

What was the official reason given for your termination? Employers do have right to hire and fire at will, but it looks like you were unfairly or wrongfully terminated. You need to post a message about this on the employment law section of this website (if they have one) or better yet, at least consult with a local employment rights lawyer to evaluate how strong of a case you have (first consultation is usually free or very inexpensive).

 

[Daringdeb]

Thanks again Dandy Don.

I was terminated for what they say was a no call no show for two days. Heres the clencher. I was on a medical leave when I was terminated. I have copies of the Drs. note. My firing was handled in liason with the coporate operations manager which I know is not normal procedure. This was the person who happened to be getting the letters from my attorney, on the ERISA case for my ex. I managed with the company for 5 yrs., corporate was never involved when I terminated an employee. I did retain an attorney and he took the case along with the ERISA case but has failed to communicate with me nor return my calls. I even met with the head of the firm to no avail. Its such an open and shut case that I don't understand why the attorney in not persuing it. I did post it under employment law but have yet to receive a reply.

Debbie
(Daringdeb)

 

[Dandy Don]

Yours is a special, unique situation in which it would be much more preferable to have an in-person consultation. I'll bet you have a strong case that you could win.