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My brother and his wife had been married for 25 years but they…

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My brother and his wife...

My brother and his wife had been married for 25 years but they divorced 5-6 years ago. Around that time I was named my brothers POA and have been managing his finances ever since. His ex-wife (in MN) never forwarded statements from a small IRA account to his new address in IL. I knew about the account because she received 1/2 the value in a lump sum in the divorce but this account slipped through the cracks because the ex didn't forward the statements. My brother passed on April 14th last month and I have been going through some old files and was reminded about the acconts existence. Unfortunately, the ex-wife was still named beneficiary of the IRA on the date of his passing. His Last Will and Testament names me as the Executor of his estate and 100% primary remainder beneficiary. Do I have any recourse to ensure this account doesn't go to his ex-spouse? We definitely would have taken her off as beneficiary after the divorce if I had been reminded of the account through mailings. Does the Last Will and Testament take precedence over the named IRA beneficiary? What recourse do I have at this point to ensure this money doesn't go to the ex-souse? They had a bitter divorce and zero contact from the time they divorced through the date of his passing.

Submitted: 10 years ago.Category: Estate Law

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5/19/2012

Estate Lawyer: Legalease, Attorney replied 10 years ago

Legalease, Attorney

Category: Estate Law

Satisfied Customers: 16,440

Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues

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Hello there

Can you tell me if any other IRA's or investment accounts were a subject of the marital settlement agreement at the time of the divorce?

---MARY

Customer reply replied 10 years ago

Yes, he was required to split everything 50/50. There was a small 401K account and she already received half of that as well.

He was also receiving $2333/month social security disability as of February of this year. He named me Representative Payee before he passed. Unfortuantely, he passed before receiving $37,000 in a lump sum from back-pay he was expecting. He has five survivung children (ages 16-28) Does this money go to his ex-wife since she has custody of the only minor child?

Estate Lawyer: Legalease, Attorney replied 10 years ago

Hello again

The ex wife was cut off from being a recipient beneficiary of any of his assets at his death by virtue of the divorce decree. However, if she was a named as a specific beneficiary on any life insurance policies or accounts like the 401k then the entire subject becomes more troublesome because accounts with named beneficiaries can sometimes be left like that as part of the divorce agreement or even a later agreement between the parties that she may try to claim happened in order to pay for expenses for the children in the case of his early demise. The 401k plan is particularly troublesome because once they notice that you changed the beneficiary after his death then they are most likely not going to want to pay it out to you. They will recognize the fact that the marital estate ended years ago with the divorce -- but you will have to go to probate court and if there is a will you will have to submit the will and be named executor of the will and then get a court order for the 401k to be paid over to the estate -- that is if the ex wife steps up to the plate and tries to claim the 401K. So, it can be handled by applying to the probate court for appointment as the executor of his estate as soon as possible and then asking for the funds to be distributed to the estate -- if the court orders it then the 401k plan has no choice but to turn it over. Please press the accept or submit under this answer box so I will be paid for my time. I m not paid anything unless you press the gren button below. THANK YOU

--MARY

Customer reply replied 10 years ago

I already received the 401k distribution. I am looking for the IRA funds. Should I call the IRA company and just be honest about everything? Tell them he died and I am named in Last Will and Testament??

Estate Lawyer: Legalease, Attorney replied 10 years ago

Hello there

401k and IRA funds are essentially the same type of pension vehicle so the answer is the same. You can be honest with them and see if they will pay them out to you -- but if she gets there ahead of time she may try to lay claim to the IRA and then you are still in the position of going to the probate court with the will and being appointed executor. In fact, most, if not all, of his banks will not even talk to you unless you have either a "small estate administration form" from the probate and family court -- which you can get if the estate is worth less than about 10-15K (for this you only need to get the forms from the clerk of courts and they appoint you immediately without a full blown probate hearing) or if his assets are worth more than that, then you will have to complete Probate Administration forms and present the will to the court and they will name you as executor to take care of everything). If you get nowhere with the IRA and any other accounts that they may have had, you will have to go to the probate court. By the way, as far as his social security "lump sum" payment goes, his ex-wife will not automatically receive the funds -- it should go into his estate and then it is split between all of his heirs -- his children. I hope that helps. Please press the green accept or submit button underneath this answer box so I will be paid for my time. THANK YOU

---MARY

Legalease, Attorney

Category: Estate Law

Satisfied Customers: 16,440

Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues

Verified

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