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Recovering parents 401k

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OHRoadwarrior

Senior Member
What is the name of your state (only U.S. law)? Ohio/Texas/(Mexico)

Please limit answers to those possessing knowledge, not opinion.

We have had unique issue develop and would appreciate relevant input. My uncle died. He had a Chrysler 401k through Merrill Lynch. He resided in Mexico the last 12 years of his life. He filed his US taxes via a Texas P.O. Box that forwarded his mail to Mexico. His US car and license were registered at my home in Ohio. Due to an attempted fraud near the time of his death, we reported his incapacity and of his login info having been stolen to Merrill Lynch. They were advised any pending transfers were fraudulent. At that time they advised they would freeze the account and it would require a court appointed executor to process the account.

He has passed. An issue has arisen as to what court has jurisdiction to appoint his executor. He was not a resident of standing in Ohio or Texas. An attorney's attempt to resolve this with Merrill Lynch was unsuccessful. The only thing Merrill Lynch would disclose was according to their records there were no named beneficiaries. I believe we can file against the 401k in the state it is administered from, as it is the only asset that required probate. How do we discover where we need to file? Due to the joint party agreement he had forwarding his mail we are unable to change the US address. The party receiving his statements in Mexico will not give them up.

(Yes, I am acting as an agent of my cousin in this. He travels for work 27 days a month.)
 


garrula lingua

Senior Member
This does not constitute legal advice. It's just shared for the purpose of education regarding Probate jurisdiction issues:

In most jurisdictions in the US, Probate filing is correct where the decedent was living just prior to his death, or where the property/estate is located.

I guess that would mean Mexican Probate (forget that) or Michigan (where headquarters of Chrysler account is located) ...

... Who will challenge jurisdiction, other than the Judge ?

Texas, which is friendlier than most states regarding Probate, is pretty loose regarding jurisdiction. Our caselaw usually involves arguments regarding venue - issues as to which Court (District, County, Statutory Probate) and which county has jurisdiction.

The State Bar of Texas publishes "Texas Probate System", and that tome refers to Probate Code, Section 6 as to jurisdiction.
To quote: "All the forms in this System assume decedent's domicile and customary place of residence to be in the county in which the application is filed."
Faced with an 'alternate jurisdiction' issue, this helpful 20 lb book states:
Add one of these paragraphs for use in your application and in the proof of death to be signed by the witnesses, and it lists alternative paragraphs, including:

"This Court has jurisdiction and venue even though Decedent had no domicile or fixed place of residence in Texas, because Decedent died in this county. OR
several other options, including # 3 option :
"This Court has jurisdiction and venue even though Decedent had no domicile or fixed place of residence in and did not die in Texas, because this is the county of residence of Decedent's nearest of kin.

and another option is:
"no domicile or fixed place of residece and did not die in or have kindred in Texas, because this is the county in which Decedent's principal estate was situated at the time of Decedent's death.

So, if Tx allows Probate in the county of the next of kin (as well as where Decedent's estate can be located, or where he died, or because he was domiciled or resided there), I'd check the next of kin's state Probate Code (or better yet, a Probate treatise in that state) for a similar tolerance.
It's $300 to file for Probate in most Texas courts. Check on your state's cost for filing - it's probably in the same ballpark.
PS: 'Domicile' is a squishy concept in TX. Also, Tx is very tolerant of border-crossing issues in court.
 

OHRoadwarrior

Senior Member
Texas was out because the "address" was a p.o. box, not a physical place he resided. He resided in Mexico. I agree probating at location of asset is best, however, the Chrysler 401k is administered by Merrill Lynch. Absent our ability to obtain the "statement address", is Chrysler or Merrill Lynch who we need to file against and since this isn't a regular Merrill Lynch account, it cannot be accessed via a local brokerage office, so what address do we use to file against? It is administered via Benefit Express, so they enter as a possible entity to file against also.
 
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garrula lingua

Senior Member
You are not filing against an asset; there is no respondent in Probate.
The style/caption will read similar to:
"Estate of
XXX,
Deceased
with the Court Info on the right side.

In the Application for Probate of Will and Issuance of Letters Testamentary and also in a Proof of Death and Other Facts (or similar), you will have to state your basis for jurisdiction.

My first choice would be to check your State's Probate jurisdiction by visiting the Law Library (Probate manual, not the Code); I would first look for jurisdiction where next of kin is located. If that is allowed, you are correct in filing there.

I believe Merrill Lynch -Chrysler 401k is administered through Bank of America, which probably has a presence in all states.
 

OHRoadwarrior

Senior Member
Attorneys in Ohio want to file claiming status is Ohio resident. They insist all assets ever associated w/unc be considered part of estate, including majority of previous assets owned by him in Mexico, which were gifted prior to his death and other non probate assets. When they discover the payout is not going to be there, because estate was planned properly except for problems created by the attempted theft before his death, they say it is too complicated for them to handle. Second problem is applying Ohio residency could obligate estate for several years of income taxes, since he was not resident and did not live here. I find no reference to Ohio jurisdiction for next of kin filing.
 
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