What to do if my dad died and his employer is holding onto his last paycheck and said that I need a lawyer to receive payment?

UPDATED: May 5, 2013

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What to do if my dad died and his employer is holding onto his last paycheck and said that I need a lawyer to receive payment?

There was no established will, I am the only biological child. He had raised step kids that had his last name changed legally to my dad’s last name. Why do I need a lawyer? I have no money for attorney fees, please advise how I can proceed to receive what I believe to be entitled to.

Asked on May 5, 2013 under Estate Planning, California


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Sorry to hear about your dad.

Since your dad did not leave a Will, the rules of intestate succession determine inheritance.  Intestate means dying without a Will.

Under intestate succession, if your dad had a surviving spouse, his entire estate would go to her.  If there wasn't any surviving spouse, his estate would be divided equally between you and the stepchildren.  Biological and adopted children inherit equally.

The last paycheck would be part of your dad's estate.  Inheritance would be based on a portion of the entire estate; not just a portion of the paycheck.  The size of your dad's estate will determine whether or not probate is required.  If probate is applicable, the probate attorney is paid a percentage of the estate.  Therefore, you could afford an attorney since payment would be from the estate after an executor is appointed.  Payment would not come from you as a beneficiary.  Your County Bar Association can refer you to a probate attorney.

If the estate is small, there is no probate.  There are forms for administration of a small estate which all beneficiaries would sign and have notarized.  When that form is sent to the employer, the employer will release your portion of the paycheck.

Legal Aid can provide you with an attorney at no cost.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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