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Need more info re deceased ex spouse beneficiary from Brokerage Accounts... I am an ex spouse named as sole beneficiary on ...

Seattle, WA |

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.

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Best Answer

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.

The answers and information I provide here, via a link, or any other reference do not create an attorney-client relationship. Before acting on any information provided, you should contact an attorney who has experience with your issue Though I may answer questions posed by individuals in other jurisdictions, I am licensed to practice only in the State of Illinois. If you reside outside the State of Illinois and your matter does not relate to a person or property inside the State of Illinois, you should contact counsel in your particular state. IRS Circular 230 Notice: "To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code of 1986, as amended, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein."


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.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

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