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Undocumented father dead in car accident: How to get insurance claim to heirs

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Jeff_S

Junior Member
What is the name of your state (only U.S. law)? California

I am helping a friend out with the situation that follows:

His father (lets call him Fernando), was killed by a drunk driver. The driver had basic liability coverage. The insurance company has agreed to pay the max of $15k to as a result of Fernando's death. He had only three heirs, his sons. Two are adults and one is a minor. All three sons are citizens born and residing in the US. However, Fernando, a native of Mexico, had been living/working in the US without documentation. He had no Social Security card, no bank accounts, no money and no assets.

What I have learned is that they cannot just give it to the heirs, it must go through proper probate channels. We need to establish a bank account with the legal authority to receive the funds on the behalf of the Fernando's estate and then disperse the money to the brothers. I am wondering how it is possible to open a bank account without any money in it. All the example cases I am reading about involve starting with a decedent who had money and other assets. However, the only asset in this case is a future insurance payment.

I want to help my friend with whatever legal steps are needed to get the insurance benefit for Fernando's death to his sons. Does he need an estate or trust or both? If so, what type?

Is the undocumented status of Fernando an issue? I was reading some things and believe filing an SS-4 is needed. Can this be done without a lawyer? My friend and his family have little money. I am willing to help with as much as possible. Although this is unfamiliar territory, I have drawn up legal documents related to some complex legal issues at work, and feel up to the challenge.

Any advice or guidance would be greatly appreciated.

Thanks!
 


OHRoadwarrior

Senior Member
The possibility exists the three sons could be prosecuted under Federal Law.
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01907.htm
 

LdiJ

Senior Member
The possibility exists the three sons could be prosecuted under Federal Law.
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01907.htm
I have to assume that you are attempting to claim that they could be accused of "harboring" their father? That is an absurd statement to make. Please cite a single case where a US citizen child has been prosecuted for harboring an illegal alien parent where criminal activity (other than the crime of being an illegal alien) was not involved.
 

CdwJava

Senior Member
Not to mention that the crime of "harboring" likely requires an overt act such as lying to authorities about him or providing false documents, etc. in order to conceal his status or identification to avoid arrest. I am confident that merely neglecting to report dad to ICE will not result in any criminal liability.
 
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LdiJ

Senior Member
Not to mention that the crime of "harboring" likely requires an overt act such as lying to authorities about him or providing false documents, etc. in order to conceal his status or identification to avoid arrest. I am confident that merely not reporting dad to ICE will result in any criminal liability.
I think you left out a "not" Cdw.
 

OHRoadwarrior

Senior Member
Read the law. Feel free to argue the law is wrong, is erroneous or could not be applied to them. The fact is, it is the law.

I have to assume that you are attempting to claim that they could be accused of "harboring" their father? That is an absurd statement to make. Please cite a single case where a US citizen child has been prosecuted for harboring an illegal alien parent where criminal activity (other than the crime of being an illegal alien) was not involved.
 

OHRoadwarrior

Senior Member
The law is the law. Ignorance of the law is not a defense. It is foolish for one to argue one law should be invoked to their profit and another not be invoked to their detriment.

Harboring -- Subsection 1324(a)(1)(A)(iii) makes it an offense for any person who -- knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.

Encouraging/Inducing -- Subsection 1324(a)(1)(A)(iv) makes it an offense for any person who -- encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.

Conspiracy/Aiding or Abetting -- Subsection 1324(a)(1)(A)(v) expressly makes it an offense to engage in a conspiracy to commit or aid or abet the commission of the foregoing offenses.














I have to assume that you are attempting to claim that they could be accused of "harboring" their father? That is an absurd statement to make. Please cite a single case where a US citizen child has been prosecuted for harboring an illegal alien parent where criminal activity (other than the crime of being an illegal alien) was not involved.
 

CdwJava

Senior Member
Having seen "harboring" and assorted aiding and abetting laws applied for state crimes when it comes to aiding fugitives from justice, I can say with confidence that they are not going to pursue someone for "harboring" if all they did was fail to report their father. An overt act must be committed in furtherance of the concealment as there is no law that requires them to turn in dad. I seriously doubt that the state and the feds have greatly differing definitions here.

The family doesn't have to worry about this one. They might have a problem collecting the insurance for other reasons, but fear of prosecution should be their last concern.
 

OHRoadwarrior

Senior Member
They can roll the dice and expect the insurance company to avoid payout if invoking law is possible. They can also expect a challenge to the identity of the person who was killed and his heirs.
 
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CdwJava

Senior Member
They can roll the dice and expect the insurance company to avoid payout if invoking law is possible. They can also expect a challenge to the identity of the person who was killed and his heirs.
Yes, identification and recognition of any heirs are the key impediments here, not prosecution. There may be any number of methods the insurance company can use to avoid paying out the $15,000 to the sons - I don't know. I know how difficult it can be to collect LIFE insurance during uncontested probate of life-long residents and citizens (family members) ... I can't imagine how many new and exciting barriers this situation might create.
 

PaulMass

Member
The possibility exists the three sons could be prosecuted under Federal Law.
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01907.htm
The possibility also exists that the three sons could be prosecuted for drunk driving, since there is an equal amount of evidence (zero) of drunk driving than there is for harboring an alien (also zero).

Let's make up some more facts. This is fun.
 

OHRoadwarrior

Senior Member
It is not up to us to pick and choose the laws that might be used. Only highlight them. You may find illegal immigration insignificant, however it costs the US billions. In this case it could cost the insurance company $15k. I have fought a few nasty battles with insurance companies in the US and in Mexico. I know how low they can go.


The possibility also exists that the three sons could be prosecuted for drunk driving, since there is an equal amount of evidence (zero) of drunk driving than there is for harboring an alien (also zero).

Let's make up some more facts. This is fun.
 

LdiJ

Senior Member
It is not up to us to pick and choose the laws that might be used. Only highlight them. You may find illegal immigration insignificant, however it costs the US billions. In this case it could cost the insurance company $15k. I have fought a few nasty battles with insurance companies in the US and in Mexico. I know how low they can go.
Which is exactly why you go searching for reasons to scare legitimate US citizens into not claiming things that they are entitled to receive. You are mad that the OP's father is undocumented, so you want the OP to be scared that they will be prosecuted for a crime that they absolutely cannot be prosecuted for. Its a bit beneath you.
 

LdiJ

Senior Member
They are attempting open probate on a foreign citizen to obtain a US car insurance settlement, without proof of who he is and how they are entitled to the money and not someone in Mexico they have not told about his death.
His US citizen children are looking to claim insurance proceeds. Children are direct heirs. Unless there are other children or a wife in Mexico, which I suspect the OP would have mentioned, your argument is irrelevant.
 

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