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401k Probate-able? Surviving Spouse, Willed to Daughter

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calicode

Junior Member
What is the name of your state? CA

In this case there is a Will that is dated after marriage.
Will bequeaths 401k (which was started before marriage, and contributed to during marriage) and other assets to daughter.
There is no beneficiary form on file for the 401k.

401k institution sent claim forms to surviving spouse, and those are being filed by spouse.
Probate has just been filed for other "Seperate Assets". Would the daughter have any claim to the 401k based on the Will? Should it be added to the Inventory & Appraisal of the Probate?

Thanks for any help.What is the name of your state?
 


Dandy Don

Senior Member
Sorry but this is a mistake that frequently happens. The beneficiary designation overrides anything in the will. Decedent probably wasn't aware that he should have submitted a separate beneficiary designation form for this asset.

What is the name of the company holding this 401K? Company may or may not have erred in sending the claim form to the surviving spouse. Most pension companies operate by their own internal corporate rules and regulations and sometimes do not try to find out what the law says. Executor or an attorney hired by the daughter, if executor does not want to pursue this) should be consulting an attorney about this matter to see if California state probate law would require these funds to automatically go into the estate or whether it is legal and proper for the company to send it to the surviving spouse.

DANDY DON IN OKLAHOMA ([email protected])
 

ShyCat

Senior Member
Unless there is a signed waiver, ERISA (Federal law) dictates that the surviving spouse is always the beneficiary of a 401(k) plan. Unless your stepmother signed that waiver, she is the beneficiary of that 401(k).
 

calicode

Junior Member
Is there any purpose of establishing what was contributed before the marriage vs. after... or is it a clear-cut dead issue?

Basically the plan was contributed to for a 6 year period. 3 years pre-marriage, 3 years during marriage.

Thanks again for your input (and the previous input).
 

ShyCat

Senior Member
It doesn't matter what was contributed before marriage if the spouse did not sign the waiver. Absent a signed waiver, the spouse is always the beneficiary of a 401(k) account.
 
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