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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6516
Experience:  Wills, Trusts, Probate & other Estate Matters
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My Father passed away in Georgia this February without a valid

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My Father passed away in Georgia this February without a valid will. He had a 401K account with me and my two brothers designated as beneficiaries. Sometime ago he rolled that account over into another brokerage firm (Vanguard) and did not execute a new beneficiary form. The Vanguard administrator is saying since none was filled out, it now belongs to his wife who he married just two years ago. My questions are: 1) do we (brothers) have any claim to this money? 2), if so, how do we execute it? 3) does our claim status matter if he was married before or after the rollover?, 4) does the money in this account get settled as part of probate since there was no beneficiary? in which case we would have the normal claim status as other matters subject to probate right?

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

I'm afraid I don't have good news, but please understand I'm only informing you what the law is. Please don't shoot the messenger.

TMcJD :

Under federal law (ERISA) a spouse is the beneficiary of a 401k unless the spouse signs a waiver of rights. This is true even if there is no designated beneficiary because the spouse is presumed to be the default beneficiary. This is also true regardless of whether the 401k was funded prior to marriage.

TMcJD :

As such, the will go to your father's surviving spouse and is not part of his probate estate.

TMcJD :

And, unfortunately, that means that you and your siblings to not have a legal claim to any part of the 401k unless his surviving spouse disclaims all or any portion of the 401k

Customer:

Ok, but what if there is a designated beneficiary form (as there might be on some other accounts) and the wife has not disclaimed the rights, as you note

TMcJD :

Then the spouse is still the beneficiary. Nothing overrides the spouse's right, even a separate beneficiary designation, unless the spouse has also signed a waiver.

TMcJD :

But that rule only applies to retirement assets covered by ERISA.

TMcJD :

A designation on a life insurance policy or bank accounts, etc. would be completely different and the designated beneficiary would be entitled to the assets. You only asked about a 401k though.

Customer:

Ok, good. He has some assets under stock and bank accounts, presumably (if those have the correct beneficiary) we do not need her consent...thanks

TMcJD :

You're welcome. I'm glad I could help.

TMcJD :

Please let me know if I can help with anything in the future.

TMcJD :

I would be grateful if you could please leave me a positive rating for my assistance. Thanks and have a great day!

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