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401k without assigned beneficiary?

San Jose, CA |

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

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Attorney answers 5


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.

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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.

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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.

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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.


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.

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