another account for my minor children. My ex husband died last year. The trustees (his brother & sister ) want to direct the monies in to the trust of my minor children- who are the named beneficiaries of his estate. They have filed an ex parte motion. Do I need to be present at court? Or can I file a response thru the court. I don't want to see that family. Aren't I still entitled to that money?I had an attorney. I was disappointed that he didn't think I was entitled to the money. I did all the web searches on information pertaining to cases I thought might be similar to mine. (ERISA, EGELHOFF v. EGELHOFF... Etc). I called the brokerage account provided them with all the information of my ex spouse. The brokerage agent confirmed that I was the beneficiary, and said that it will be deposited to my account on August 31. However, the motion is dated for Sept 4th... They have since filed an extension until Sept 13 for me to seek other counsel. Now what? My attorney is no longer representing me. He feels he cannot represent something he feels he will not win... So am I on my own? I don't think I need an attorney, either the brokerage company pays me or they won't. They are under Federal Guidelines to pay who is named as beneficiary--that, per the Brokerage account. Period.
Estate Planning Attorney
You posted this question before in another practice area listed on this forum, albeit you provide more facts now, and colleagues answered your question in the affirmative - the brokerage account funds are yours. We also recommended that you retain counsel.
In contested court proceedings it is usually more prudent to appear and appear with counsel and not pro se because knowing case law isn't the only thing that is involved in good advocacy. So I suggest you find an attorney who is willing to advocate for your rights.
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See my answer to this same question, posted in another area of this Forum.
I would suggest that the answers to both of your questions are yes. You DO need to show up at the hearing and you DO need to have an attorney. It is not clear why your attorney believes you cannot win. But this kind of case has been a VERY hotly litigated area of law, the past couple of years. Yes, under ERISA, you are entitled to receive the account, as the designated beneficiary. Whether or not you can keep it is the more pertinent question. Different circuits have different answers, with many of them imposing a constructive trust on you, to recover the proceeds. Without an attorney, there is a very good chance you will lose. It sounds like based on your former attorney's research of the case law, you may lose either way.
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