O/T Question for John T.

I have a question for John T. or any lawyer hanging around here. I am a trustee for an estate which is closing, Payments have been made to beneficiaries as directed by the will. All have been received, except one to a niece Canada. It has been almost three weeks. The not so bright lawyer handling the estate gets a 175,000.00 cashiers check and sends it regular mail no tracking,no nothing, to Canada. Will the estate be responsible for replacing the money, or the lawyer, if someone finds, and cahses the check, other than the niece. Then can the problem roll down hill to me a trustee? The estate has very little left.Stan

Have you checked with the niece and asked her if she received the check??? She maybe holding it while she does some tax planning or something.

If she has not received it then I would go to the bank and stop payment on the check. Yes you can stop payment on a cashiers check it just in an involved process. Then resend the check by certified/insured mail.

As for who is liable if the check is lost and cashed by someone else? That can be a real issue. You have a fiduciary duty to the estate. I have been the executer for three different estates. I had to buy a bond for an amount that would cover any shortages in the estate. My lawyer told me that the bond would pay the estate for any loses but that it would be up to the bond holder and me to seek damages.

The requirements vary from state to state. I would not use this lawyer for anything else either. You may have to cover the estate and then seek damages from the lawyer.

JD has it right- stop payment on the check, have it reissued, and send certified and insured next time.

I wouldn't worry too much about it getting cashed by the wrong person- a check that large isn't going to be easy to cash for an imposter.

Worst case scenario, go after the lawyer for malpractice. Pretty stupid to send it regular mail. He's the one who did it- you're not guilty of any malfeasance.

Don't be surprised if it is still in the postal service system...it can take a while to get through.

I agree with my Co Counsel Mike. I practice in the area of estates and probate and wouldnt think of sending out a huge check unless I used Certified with Return Receipt Requested mail with Proof of Mailing plus insure it. Other delivery methods Id consider are Fed Ex or UPS (or their Merger Fed Up)....

Okay, its the lawyer NOT YOU who engaged in this at least arguably "questionable" method of funds distribution, so if anyone were "negligent" and liable Id guess its him NOT you. The only way I see you would be guily of anything would be if you were negligent in the choice of the attorney and thats likely not the case.

Id also be calling the bank who issued the check to STOP payment,,,,,,,,Contact the Niece,,,,,,,,Then wait some time (be sure STOP payment is in place and it never was presented for payment or heaven forbid paid) and re issue a new check THIS TIME USE CERTIFIED MAIL AND INSURANCE.

Best wishes

PS Im NOT familiar with the law of your state (dont even know which it is) so this is simply my best free "educated" though still professional
GUESS and unresearched "opinion" ....No warranty... Consult a local qualified competent trained professional ATTORNEY instead of taking advice here is my other free advice.

John T

Depositing a cashier's check for 175K in US funds in a Canadian bank might be difficult.

The cost of a wire transfer would seem to be trivial, considering that it would come out of the proceeds anyway.

Thanks for the free advice. This is happening in Calif. The attorney was on board before I assumed my position, as trustee. I called the bank and the bank told me they can't stop payment until 90 days have passed. Again thanks for all the advice. I may talk to a attorney here. Stan

I don't know about your bank but stopping payment on a cashiers is quite an ordeal.


A cashier's check is a draft drawn by a Bank on itself, which the Bank agrees to honor when properly presented for payment. The Bank, not its customer, signs the check. (UCC Sec. 3104(3) (g)). This means that the Bank is liable to pay the check. Theoretically, the Bank has set aside funds from the Customer's account to reimburse itself when the check is presented for payment by the payee. In contrast to the certified check, you could seek remedies immediately and directly against the Bank if there is a problem with the payment of the cashier's check.


If either type of check is lost, destroyed or stolen, the Bank may require a bond or another security before reissuing the check. The Bank also may refuse to honor either type of check if there are material alterations (raising or lowering the amount, changing names or dates). Otherwise the Bank must pay the check when it is presented for payment in its unaltered original form. (UCC Sec. 3412)


Under certain circumstances, for example, the lack of a proper endorsement by the payee, the Bank may refuse to honor either type of check. Although it is not obligated to do so, the Bank may decide to honor a Customer's request for a stop payment on either type of check. However, the Bank does so at its own risk and, particularly for a cashiers check, it may be liable for damages for wrongful dishonor. (UCC Sec. 3411 (b)).


Why the lawyer felt the need to issue a cashier's check is just another error he's made in this simple process. I can only wonder what other screw ups he's made that aren't as obvious but possibly even more costly.

Mail delivery in Canada is slow from October until May as the only mode of ground travel is dogsled, snowshoes, snowcat etc.

The bank's liability arises from refusing to negotiate the check when presented by the bona fide payee. They have no duty to forgers, scammers and thieves.

If both the payor and the payee submitted notarized requests to the bank to stop payment, it would tip the scale toward negligence on the bank's part if they refused to stop payment and start over.

Agreed. But good luck getting the payor and the payee to submit a notarized request to the bank to stop payment when the stupid lawyer can't even handle properly mailing a letter.

The part about getting the Cashiers check doesn't sound stupid--it'd be the simplist type to deposit in Canada (I assume any bank'd be leery about cashing that size check, regardless of type)...
I'd also think if the bank paid out to the wrong person, the Bank'd have to eat it.
I haven't put a stop payment on a check in years, but the part about the "90 days" sounds very odd...