My father passed last week. He had an Ira in which I was his beneficiary. However he failed to assign a beneficiary for his 401k (which is with the same bank). He had a living trust and will that stated all his assets in all his funds would go to me. Any issues with me getting his 401k without an actual designation of a beneficiary? Thank you
Employment / Labor Attorney
I think you will have a far better chance of getting quality answers if you re-direct this to the attorneys who do wills, trusts and probate. I will redirect for you.
I am sorry to hear about your father. Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Is your father married? If so, that might create an issue. Otherwise, if all the testamentary documents are in order the named trustee, or the administrator of the Will, should ultimately be able to take possession of the funds in the 401K for later distribution as set forth in those documents.
I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference
4 lawyers agree
Estate Planning Attorney
Even if it is somewhat obvious that everything goes/should go/is intended to go to you if you are the lone beneficiary, if the account has no beneficiary designated the bank is obligated to pay it to the estate. This causes some tax issues for the estate/trust and the beneficiary, but it sounds like it would flow through to you although it will have to pass through the estate/trust to get there.
This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/
Employee Benefits Lawyer
Request a copy of the plan document from the 401(k) plan administrator. This may be the HR director where your father worked, not the investment management company, such as Fidelity or Prudential. The plan describes how the benefits are treated, since those plans are governed by ERISA. Without seeing that document, my guess is it goes to his estate, but the 401(k) plan itself may have a different process that would trump California's testamentary laws.
1 lawyer agrees
Estate Planning Attorney
I'm sorry about your father's death.
If the plan administrator won't release the 401k to you without "letters testamentary", then you will need to open a probate.
However, if the funds are worth $150,000 or less, there is a possibility that you can get them released to you by using a "small estates affidavit".
I would be happy to assist.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.