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?

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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

Answers:

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

Answered 7 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.


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