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  1. #11
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    Jun 2006
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    Massachusetts
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    Default Re: What Are the Children Repsonsibele for when a Person Dies

    Tax, I have a question.

    Take my family as an example. My mother has four children. We live in four different states and she lives in a fifth. The state she lives in is on the list j/k provided; the state I live in is; the state the younger of my two brothers is. The state my sister lives in is not, and the state the older of my two younger brothers is not. I am the oldest. The younger of my brothers has her POA. Which law applies?

    I'm not being snarky or anything - there's a very real possibility that the situation may come up and I'd like to know.

  2. #12
    Join Date
    Oct 2014
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    7,306

    Default Re: What Are the Children Repsonsibele for when a Person Dies

    Quote Quoting cbg
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    Which law applies?

    I'm not being snarky or anything - there's a very real possibility that the situation may come up and I'd like to know.
    That's impossible to know without knowing the actual states involved and seeing how the courts in the relevant states have addressed the issue, if they have addressed it all. Even knowing the states there may not be a clear answer. I referred earlier to problems pursuing children who live in other states. There are lot of them. The first is the issue of personal jurisdiction.

    Suppose Amy is the elderly mother of Beth, and Amy is impoverished and needs help to pay basic living expenses and medical bills. Amy lives in a state that has a law that imposes a support requirement on children, but Beth lives in a state that doesn't. Amy (or a state agency in Amy's state that is providing for her care) would like to sue Beth to provide that support as Beth is not willing to do it voluntarily. (They've been estranged for years.) Amy (or the state) would prefer to sue in Amy's state, of course, but unless Beth has sufficient ties to that state to be subject to personal jurisdiction in Amy's state that won't be possible. So now, Amy or the state will have to sue in Beth's state.

    The next problem that arises will be whether the courts of Beth's state will apply the law of Amy's state or Beth's state to determine whether Beth is obligated to pay support. That will turn on the conflicts of laws analysis that the courts of Beth's state uses to resolve that kind of problem. Each state does that a bit differently. Chances are that the state may not have case law addressing that particular issue, making it a gamble to bring the action as there will be no way to really predict how that will come out. After all, the policies of the two states are fundamentally different. One requires kids to support needy parents, the other doesn't. Would applying the law of Amy's state offend the policy of Beth's state? Is it fair to subject Beth to the law of Amy's state when she does not live there, does not get any of the benefits of living there, and may not even know of the obligation that state imposes? These are some of things the courts would look at.

    And if you change the fact pattern around things change. If both Beth and Amy's states have these statutes, which law will Beth's state apply? The conflict of law analysis might work a bit differently because now the states have the same basic policy of having kids support needy parents, but perhaps different rules for how it works. Would there be a reason to choose the law of Amy's state over that of Beth's state? And if Beth's state would provide more benefit, it might be that Amy wants to use Beth's state's rules and it is actually Beth resisting that and saying Amy's state rules should apply. So who is pleading which side and why may matter.

    I recall reading a case from California a few years ago where it tackled this problem. But California is perhaps the state that most uses the parental support obligation statutes and so there is some case law there that gives some flesh to the rather bare bones statutes. I suspect that most other states simply haven't developed case law on it. It's just something that in most states is rarely pursued.

  3. #13
    Join Date
    Jul 2018
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    Default Re: What Are the Children Repsonsibele for when a Person Dies

    Quote Quoting adjusterjack
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    But one of the children has to become appointed by the probate court as representative of the estate and properly notify creditors that the estate is insolvent.

    Failing to do so could make the children vulnerable to legal action by creditors.
    That's not true. If an estate is insolvent, the deceased's children or other heirs are free to do absolutely nothing and have no legal obligation to do anything. The only thing that might make a child/heir "vulnerable to legal action by creditors" would be if he/she took estate property to the derogation of creditors' rights.

  4. #14
    Join Date
    Jun 2006
    Location
    Massachusetts
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    Default Re: What Are the Children Repsonsibele for when a Person Dies

    Thanks, Tax. I suspected that might be the case. California is my youngest brother's state. We'll wait and see if the issue does come up and if it does, I'll post my own thread instead of hijacking (slaps own hand).

  5. #15
    Join Date
    Sep 2017
    Posts
    13

    Default Re: What Are the Children Repsonsibele for when a Person Dies

    Thanks for the replies.

    Another question, different, but along the same lines. I have heard that burial expenses are reimbursed before any money goes to creditors. So, if the estate winds up with 20k, and there is 20k in debt (CC, etc), but the children spent 15k on the burial and service, based on what I have heard, the children get reimbursed the 15k, and the other 5k is distributed to creditors. That true?

  6. #16
    Join Date
    Sep 2017
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    493

    Default Re: What Are the Children Repsonsibele for when a Person Dies

    This thread has been very informative. I had no idea these laws even existed and it scares the crap out of me. I live in a state where this law exists. I have a mother who I have not spoken to in many years. We have no relationship. I have one living sibling who is financially irresponsible and can barely take care of her own needs. Any possibility that I could be held responsible for supporting a woman I loathe is troubling.

  7. #17
    Join Date
    Oct 2016
    Posts
    3,043

    Default Re: What Are the Children Repsonsibele for when a Person Dies

    I finally got around to looking at the list that was posted. All I can say is don't stop at the list. Look up the law. It lists my home state but the law referenced would seem to be very limited in scope.

    A.C.A. 20-47-106. Liability for support.

    Persons legally liable for the support, care, or maintenance of a person in need of state mental health services shall be liable for the costs of such mental health services to the extent that:

    (1) The person in need of services lacks the ability to pay; and

    (2) The legally liable person is able to pay.

  8. #18
    Join Date
    Jul 2018
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    1,423

    Default Re: What Are the Children Repsonsibele for when a Person Dies

    Quote Quoting CharWorks
    View Post
    Another question, different, but along the same lines. I have heard that burial expenses are reimbursed before any money goes to creditors. So, if the estate winds up with 20k, and there is 20k in debt (CC, etc), but the children spent 15k on the burial and service, based on what I have heard, the children get reimbursed the 15k, and the other 5k is distributed to creditors. That true?
    It is generally the case that funeral/burial expenses have priority over just about anything else.

  9. #19
    Join Date
    Oct 2014
    Posts
    7,306

    Default Re: What Are the Children Repsonsibele for when a Person Dies

    Quote Quoting PayrolGuy
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    I finally got around to looking at the list that was posted. All I can say is don't stop at the list. Look up the law. It lists my home state but the law referenced would seem to be very limited in scope.
    Right, the scope of these laws in the states that have them vary quite a bit, so you have to look at the actual law to see just the potential liability is.

  10. #20
    Join Date
    Nov 2013
    Posts
    6,293

    Default Re: What Are the Children Repsonsibele for when a Person Dies

    Quote Quoting free9man
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    This also assumes no one signed anything with the hospice provider agreeing to be responsible.
    If the person is being covered under Medicare or Medicaid, third-party guarantees are not allowed under Federal law.

    42 U.S.C. 1395i-3(c)(5)(A)(ii);

    (5) Admissions policy
    (A) Admissions With respect to admissions practices, a skilled nursing facility must—
    (i)
    (I) not require individuals applying to reside or residing in the facility to waive their rights to benefits under this subchapter or under a State plan under subchapter XIX,
    (II) not require oral or written assurance that such individuals are not eligible for, or will not apply for, benefits under this subchapter or such a State plan, and (III) prominently display in the facility and provide to such individuals written information about how to apply for and use such benefits and how to receive refunds for previous payments covered by such benefits; and

    (ii) not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.
    If you want to read about the history of these law and the current situation in NJ (not only NJ). Its good information.

    http://www.lawrev.state.nj.us/Filial...espM060815.pdf

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