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Wills & Beneficiaries on accounts not specified in the will

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Pam Napoletano

My brother died in GA. His wife is supposedly the executor but we have no signed copy of the will. Does she have to file with the probate court by a certain period of time? The unsigned copy we have does not list his mutal funds or IRA's that his financial advisor and best friend handled. After his death we were told by this person we were beneficiaries and after receipt of death certificate he would submit paperwork for us to receive our proceeds from his mutal fund. In the interim he found out my brother named us to receive funds from his government 401K plan and his friend asked if we would be willing to turn this over to his wife. As we have seen no paperwork we don't know whats going on and we don't feel like his financial advisor is being above board as we have yet to see the paperwork he has been promising since he received the death certificates. If the info on the mutal funds and IRA's are not in the will do we need to hire a lawyer in the state the financial advisor is located or do we hire a lawyer in the state where my brother died?



MAY 26, 2001


(1) What month and year did your brother die?

(2) Have you checked at the county courthouse yet to see if the will has been filed? I don't know what the law is in Georgia, but normally it must be filed within 30 days after the person has died.

It's somewhat odd that you were furnished a copy of an "unsigned" will (why couldn't you have been given a copy of the "signed" will), since an unsigned will is not valid for probate, but maybe that is the most convenient copy they had on file at the attorney's office, and of course, receiving the unsigned will is better than receiving nothing at all IF it is a valid copy of the will that is being probated later on. (But it also could be an attempt to mislead you, if it is not the correct will.)

(3) Do you know the names of the mutual funds that you were named beneficiaries of? If so, then you can write a letter to that fund directly to inquire about the status of the account and to claim that money (you must furnish the decedent's name and address and SSN if you know it and date of death), and they will send you a claim form to fill out.

Of course, if you don't have the mutual fund or the IRA information, then you have to rely on the "financial advisor friend" to keep you updated as to what he has done on this matter. You were right to be wary of his intentions, and since he is a best friend of the decedent he is probably working in the best interests of his wife and not necessarily in your best interests. Maintain a cordial relationship with him and try not to offend him with persistent questions, but at the same time be firm with him when asking for proof (copies of documentation) that would verify his statements of what he claims to be doing for you. You would be wise to consider (at some future date) hiring an attorney in Georgia ( by the executor or the financial advisor), since it is Georgia probate law that will apply.

I truly hope that this financial adviser did NOT fill out the paperwork in such a way that the checks for you would be coming directly to his office (I hope he did not pose as being your financial representative) so that he would have control over them and when he would give them to you. I guess you should trust him until he gives you reason to believe otherwise.

(4) According to the will, will you be receiving any other money or property from this will besides the pension benefits?

Do you have any idea of the estimated total value of his estate?

As far as being named the beneficiaries of his mutual funds and IRA acccounts, you are in a very strong position to be eligible to receive this money, since the beneficiary designation on these accounts can not be overridden by what is written in the will. However, there is a federal law that the beneficiary of the 401k accounts is supposed to be the spouse (and that is why the adviser asked you if you would be willing to exercise the option of letting those monies be given to her). So there may be some question or some small dispute as to whether you or she is eligible to receive this money.

If the wife has been fairly well taken care of and will be receiving a fair share of the estate, then you should keep the 401k money yourself since your strongest argument is that you were named beneficiary. However, if it looks as if the wife has been left not so well off financially from the estate, then you should consider letting her have all or a portion of the 401k funds. By law she is entitled to at least one year's worth of financial support, and basically everything in the estate if there are no children involved.

I hope that this wife and the financial adviser are trying to be honest about how the estate will be handled and divided, but I somehow get the sense that they are strategizing to handle things in a way that will best benefit them and may be not giving you all the full story as to what is being done or may not want to keep you all fully informed, and so you must take steps to preserve your own interests.


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