Bounced check never paid and person died, uncle POA

Lesley Reed

New Member
Jurisdiction
Arizona
My dad wrote me a check for a large sum of money. He wanted me to have my inheritance BEFORE he died. The check bounced. I told my dad. He said his brother was his financial POA and he would speak to him. My uncle sent me a letter saying I should find another way to finance my son's education. Clearly, he had his own opinion of why my dad was sending me 15,000.00. My dad was elderly at the time and had no idea how much was in his account, apparently. He also allowed my uncle to take him to rewrite his will 2x in four years. My dad died in October 2019. The check was written 2017 and I never pursued it then because writing a check without sufficient funds is criminal. How do I get the money from my dad's estate? I live in FL. My dad died in AZ. I have no idea who is handling the estate. I do know my uncle (who is estranged from me and has mental health issues) lives in AZ.
 
My dad died in October 2019. The check was written 2017 and I never pursued it then because writing a check without sufficient funds is criminal. How do I get the money from my dad's estate?


Please accept my sincerest condolences upon the loss of your father.

I live in FL. My dad died in AZ. I have no idea who is handling the estate. I do know my uncle (who is estranged from me and has mental health issues) lives in AZ.


You describe several issues that would likely impede you from proceeding.

I won't bother discussing the obvious ones.

The major obstacle is that your father allowed his thieving, mentally challenged brother to own and operate his bank account.

My guess is that any money left in the account when your father passed on was minimal, or the thief had already LOOTED all of your dad's funds anyway.

You could discuss the matter with an Arizona attorney.

However, Arizona law says a bank is not required to honor a check older than six months.

The check you hold that bounced is about three years old.

That would likely end the matter, allowing the thief to escape any criminal prosecution.

It might be time to simply take a deep breath and continue to make the best life you can for you and yours.
 
My dad died in October 2019. The check was written 2017 and I never pursued it then because writing a check without sufficient funds is criminal. How do I get the money from my dad's estate?

Your father did give you a check, and it bounced. I see only one possible avenue to sue to get the money given the few facts that you provided. You were given a check for $15,000 that your father's bank did not honor because the account didn't have the money. As a holder of the instrument you are entitled to sue your father (or his estate, now that he's deceased) for the money as a holder of note under Arizona's version of the UCC Article 3, specifically Arizona Revised Statutes (ARS) 47-3414. Near as I can tell the statute of limitations to pursue the claim would be 4 years from when the check was dishonered. You'd need to sue in Arizona, and I'd urge you to contact an AZ civil litigation attorney ASAP to see if, in fact, you can still sue the estate under the UCC for this now.

Note on possible problem: if indeed this was to be truly an advancement on your inheritance, then if you get the $15,000 from the estate it would reduce what you get from the estate distribution by the same amount. So in that case, if you were to get at least $15,000 from the estate now without taking into account the advancement then it would not be worth suing for because it would end up being a wash anyway.

The fact that your father had given his brother a financial POA does not mean your dad was not in control. He was, assuming he was competent at the time he gave you the check. He certainly could have directed his POA to issue you a good check or just done it himself. He didn't do that. Instead, he brushed it off his brother, which kind of suggests that he wasn't really eager to give you that money after the check bounced. In other words, blaming his brother was, from the sound of it, kind a cop out on his part.

Note that in order to successfully prosecute someone for writing a bad check in Arizona the state has to prove the person issuing the check knew the check was no good at the time he wrote it. That might have been tough for the state to prove in this instance even if the prosecutor would be inclined to pursue criminal charges for a check that was a gift. Typically prosecutors only go after bad check cases when the person holding the bad check has given goods or services in exchange for the check such that they are out something of value.
 
My dad died in AZ. I have no idea who is handling the estate.

Start by calling the probate court in the county where your Dad was living at the time of his death and see if a probate file has been opened. If it has, you can order a complete copy of the file which should contain the final will. It will also tell you who is handling the estate.
 
He also allowed my uncle to take him to rewrite his will 2x in four years

There is nothing in the post that names OP as a beneficiary in the will.

He wanted me to have my inheritance BEFORE he died.



Note on possible problem: if indeed this was to be truly an advancement on your inheritance, then if you get the $15,000 from the estate it would reduce what you get from the estate distribution by the same amount. So in that case, if you were to get at least $15,000 from the estate now without taking into account the advancement then it would not be worth suing for because it would end up being a wash anyway.

Your post assumes that OP was a beneficiary and that he received at least $15,000. We don't have all the information to make that assumption.

How do I get the money from my dad's estate?

Would indicate that he wasn't a beneficiary or that the estate is in probate (if one was opened) and OP has not yet been notified.

Start by calling the probate court in the county where your Dad was living at the time of his death and see if a probate file has been opened.

Good advice.
 
How do I get the money from my dad's estate?

You're free to sue the estate (in Arizona). The statute of limitations is three years from the date of dishonor (see ARS 47-3118(C)), so depending on when in 2017 your father wrote the check, it may already be too late.

Your post assumes that OP was a beneficiary and that he received at least $15,000. We don't have all the information to make that assumption.

That's likely why all of the statements in the bit of "Tax Counsel's" post that you quoted started with the word "if."
 
Your post assumes that OP was a beneficiary and that he received at least $15,000. We don't have all the information to make that assumption.

I did not make that assumption. But you are correct, we do not have all the information. But the OP did say the following:

He wanted me to have my inheritance BEFORE he died.

Read literally, the OP's father did want his son to get his inheritance via that $15,000 check, i.e the father considered it an advancement. We don't know is what the father did with his will or even if he had a will at the time he died, or if he did what the OP's share was. But as he raised the possibility of an advance, I provided him with something to consider if his inheritance distribution from the estate will be at least $15,000 and if the $15,000 check is treated as an advancement on that inheritance. Note that I used the word if twice in my previous reply to indicate that both the fact of what he will get from the estate and whether this check is an advancement are not known but to give him a heads up of the potential waste of time and money suing for the check should the situation I stated turn out to be the case.
 
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Good catch. I didn't see that provision. All the more reason for OP to consult an Arizona civil litigation attorney ASAP. If he does still have time that time may run out if he waits.

Also, (from the same page that zddoodah cited): In addition to possible criminal prosecution, the writer of a bad check can be held civilly liable. If a dishonored check is not paid within twelve (12) days of the date of a notice of dishonor (written or in person), under ARS 12-671 you will owe to the holder of the check an amount equal to twice the amount of check, or an additional $50, whichever greater, plus attorney fees and costs.

It seems that the OP may be able to go after the estate for $30,000 plus fees and costs.

12-671 - Drawing check or draft on no account or insufficient account with intent to defraud; civil action; definition of credit; prima facie evidence

A. A person who, for himself or for another, with intent to defraud, makes, draws, utters or delivers to another person or persons a check or draft on a bank or depositary for payment of money, knowing at the time of such making, drawing, uttering or delivery, that he or his principal does not have an account or does not have sufficient funds in, or credit with, such bank or depositary to meet the check or draft in full upon presentation, shall be liable to the holder of such check or draft for twice the amount of such check or draft or fifty dollars, whichever is greater, together with costs and reasonable attorney's fees as allowed by the court on the basis of time and effort expended by such attorney on behalf of plaintiff.

B. The word "credit" as used in this section shall be construed to be an express agreement with the bank or depositary for payment of the check or draft.

C. Proof that, at the time of presentment, the maker, issuer or drawer did not have sufficient funds with the bank or depositary, and that he failed within twelve days after receiving notice of nonpayment or dishonor to pay the check or draft is prima facie evidence of intent to defraud.

D. Where a check, draft or order is protested, on the ground of insufficiency of funds or credit, the notice of formal protest thereof shall be admissible as proof of presentation, nonpayment and protest and shall be prima facie evidence of the insufficiency of funds or credit with the bank or depositary, or person, or firm or corporation.

E. "Notice", as used in this section, means notice given to the person entitled thereto, either in person, or in writing. Such notice in writing shall be given by certified mail, return receipt requested, to the person at his address as it appears on such check or draft.

F. Nothing in this section shall be applicable to any criminal case or affect eligibility or terms of probation.
 
It seems that the OP may be able to go after the estate for $30,000 plus fees and costs.

12-671 - Drawing check or draft on no account or insufficient account with intent to defraud; civil action; definition of credit; prima facie evidence

A. A person who, for himself or for another, with intent to defraud....

(Bolding added). I think not. In order to get that penalty, the statute requires the maker of the check to intend to defraud the person to whom he gave the check. This was a gift, and thus there was no fraud possible — the father did not get something of value in exchange for that check.
 
(Bolding added). I think not. In order to get that penalty, the statute requires the maker of the check to intend to defraud the person to whom he gave the check. This was a gift, and thus there was no fraud possible — the father did not get something of value in exchange for that check.

C. Proof that, at the time of presentment, the maker, issuer or drawer did not have sufficient funds with the bank or depositary, and that he failed within twelve days after receiving notice of nonpayment or dishonor to pay the check or draft is prima facie evidence of intent to defraud.
 
C. Proof that, at the time of presentment, the maker, issuer or drawer did not have sufficient funds with the bank or depositary, and that he failed within twelve days after receiving notice of nonpayment or dishonor to pay the check or draft is prima facie evidence of intent to defraud.

You are missing the point. Fraud requires a intentional misrepresentation in order to gain something of value from the other person. In the case of a bad check the misrepresentation is that the check is good, and so the portion of the statute you quoted above helps the plaintiff meet his initial burden to prove that the maker knew there were no funds in the account and thus the maker misrepresented that the check was good. But you still have to establish that the misrepresentation resulted in fraud, and that means the plaintiff has to show that the maker obtained something of value in exchange for it. This was a gift. Thus the father got nothing in exchange for the check and no fraud was possible.
 
Based on the statutory language, ARS 12-671(A) requires the following three elements:

1. The making, drawing, uttering or delivery to another person or persons a check.
2. The person making (etc.) the check has intent to defraud.
3. The maker of the check knows that there are insufficient funds to cover the check.

Interestingly, and while it is implied, the statute seems not to require that there actually not be sufficient funds to cover the check. Somewhat of an odd oversight.

While these seem to be three distinct elements, ARS 12-671(C) seems to conflate elements 2 and 3 by making it prima facie evidence of intent to defraud that (a) there were insufficient funds and (b) the maker failed to make good on check after receiving notice from the payee.

Because of sub-section (C), and without reading any case law, I disagree that it is necessary for the payee to make a separate showing of intent to defraud (whether by showing that the maker received something of value for it or otherwise). Because the making (etc.) of an NSF check and the failure of the maker to make good on that check after being given notice constitute prima facie evidence of intent to defraud, the plaintiff has no such burden. Rather, the defendant would have the burden of proving a lack of intent to defraud, which, in this case, would likely be very easy because the check was given as a gift. You get to the same result, but you get there by different means.
 
Because the making (etc.) of an NSF check and the failure of the maker to make good on that check after being given notice constitute prima facie evidence of intent to defraud, the plaintiff has no such burden. Rather, the defendant would have the burden of proving a lack of intent to defraud, which, in this case, would likely be very easy because the check was given as a gift. You get to the same result, but you get there by different means.

Correct, and you explained procedurally how it would work, which I did not do. The result is that the plaintiff would end up losing because the defendant could easily defeat the presumption of intent to defraud by pointing out that because it was a gift there was no possibility of fraud, and thus there could be no intent to defraud either.
 
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