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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 3170
Experience:  Wills, Trusts, Probate & other Estate Matters
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In the State of Texas can probate courts override Federal 401K

Customer Question

In the State of Texas can probate courts override Federal 401K rule regarding Spousal being first in line when an employer fails to locate a beneficiary form after changing 401K plan administrators?
My husband died without a will and he does have two children from a previous marriage
Submitted: 7 months ago.
Category: Estate Law
Expert:  Barrister replied 7 months ago.
Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply,but rest assured, I am working on your question..Does the plan administrator have any record at all of any beneficiary for the 401K?.Is the judge trying to consider the proceeds part of the intestate estate?..thanksBarrister
Customer: replied 7 months ago.
The plan administrator does not have a beneficiary form on file. We have not begun probate proceedings but as spouse I am trying to complete the paperwork but am thinking if they can't find a form it would no longer follow the Federal rule that a spouse must sign if anyone else is to be beneficiary
Customer: replied 7 months ago.
I am currently awaiting the HR department of the employer to see if they followed thru to complete all paperwork for 401K
Expert:  Barrister replied 7 months ago.
Ok, if this is an employer sponsored plan, then you are correct that the default beneficiary is the spouse and the only way that can be changed is if the spouse signs off on a waiver agreeing to allow the employee to name someone else as their beneficiary. .So if there is no one named as beneficiary at all, then the default is you as the spouse. Even if there is a beneficiary form completed that they find, unless you signed off on a written disclaimer of interest, it would be invalid and you are still the default beneficiary..So bot***** *****ne is that unless the plan administrator has something signed by you disclaiming your interest, then you are the default beneficiary in any situation unless you had a prenup where you waived any rights to it...thanksBarrister

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