Legal questions dying intestate

[TheRunt]

Help please. If any of the legal types around here can give a bit of advice.
My father in law passed away a little while ago he left his children as a benificiary to his 401k unfortunatly he did not have his new wife sign off on it so the plan adminsistrators have followed the law and have given it to her.

She knows that is not what he wanted but it seems like she is going to be a bit of a bitch about it. Any legal recourse?

If not she has emptied his personal not joint bank accounts(withdrew money about 5hrs after the time of death via atm) and then emptied them before the death notice hit the papers. And has transfered his personally owned not jointly owned vehicle to herself without going through probate. Any way to hit her for any of that? Financially or criminally? Also what is the best way to get his personal belongings before she gets rid of any more of them? ie family heirlooms such as rosaries, jewelery from his mother and such? Get my wife or her sister appointed administrator and show up with the cops to go through the house? But that brings up the question of how to prove it was his. Yes I know she and her sister are going to need a attorney but I'd like to have at least a bit of knowledge before we talk to one since the last time I had to go through something like this the lawyer gave some very bad advice just to get the fees.

This is in Indiana

[phantasm]

You should have been friendly to her while your father was still alive.

Sounds like you never gave this woman a chance.

Consider this your moment to show how much of a man you are.

Call a meeting with her, tell her you have decided that she can have everything, and decide how to split it among the children.

[Khariz]

Help please. If any of the legal types around here can give a bit of advice.
My father in law passed away a little while ago he left his children as a benificiary to his 401k unfortunatly he did not have his new wife sign off on it so the plan adminsistrators have followed the law and have given it to her.

She knows that is not what he wanted but it seems like she is going to be a bit of a bitch about it. Any legal recourse?

If not she has emptied his personal not joint bank accounts(withdrew money about 5hrs after the time of death via atm) and then emptied them before the death notice hit the papers. And has transfered his personally owned not jointly owned vehicle to herself without going through probate. Any way to hit her for any of that? Financially or criminally? Also what is the best way to get his personal belongings before she gets rid of any more of them? ie family heirlooms such as rosaries, jewelery from his mother and such? Get my wife or her sister appointed administrator and show up with the cops to go through the house? But that brings up the question of how to prove it was his. Yes I know she and her sister are going to need a attorney but I'd like to have at least a bit of knowledge before we talk to one since the last time I had to go through something like this the lawyer gave some very bad advice just to get the fees.

This is in Indiana


If any part of an Indiana decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to varies as follows:

A surviving spouse is entitled to the entire intestate estate if the decedent is not survived by issue or a parent.
If the decedent is survived by at least one child or by the issue of at least one deceased child, the surviving spouse is entitled to one-half of the net intestate estate.
If the decedent is survived by no issue, but the decedent is survived by at least one parent, the surviving spouse's share is three-quarters of the net intestate estate.
Under a special provision, if the surviving spouse is a second or other subsequent spouse who did not at any time have children by the decedent, and the decedent left surviving him a child or children or the descendants of a child or children by a previous spouse, such surviving second or subsequent childless spouse gets only a life estate in one-third of the lands of the deceased spouse. At the time of decedent's death, full ownership (in fee) of such lands vests at once in decedent's child or children, or the descendants of such as may be dead (subject only to the life estate of the surviving spouse). The second or subsequent childless spouse does, however, receive the same share of decedent's personal property as outlined above for surviving spouses generally.

The probate court will be the one to enforce the provisions of the intestacy laws of the state. Have the court appoint an administrator and gain control of the assets. Then the administrator can divide the property according to the law above.

[Khariz]

So, your wife and her sister are the children of the the father whose estate we are talking about, right?

If so, the spouse is only entitled to HALF, according to that law. The administrator of the estate will dish out 1/4 each to your wife and her sister if they are the only children (and depending on the laws of the state). This 1/4 each can come in the form of liquidating the assets and giving them cash, or by giving them actual property worth 1/4 of the estate. That's the kind of stuff that's hashed out in probate.

[TheRunt]

Thanks Khariz I understand a bit about the division of property, and that they will need to have and administrator appointed which according to IN law will have to be either his wife or my wife or her sister. Or there personal representative.

One of the things my sister in law wanted to know about was lawsuits regarding the 401k He had them listed as beneficiaries but hadn't gotten his wife to sign a waiver on it yet. They had only been married a bit under 2 years and he may not of realized that he needed her to do so.

Also about the accounts that were in his name only that she has emptied since he passed. And the best way to get personal belongings from the house.

[Khariz]

It is ERISA (Federal Law) mandated that the spouse of the 401k holder is automatically the beneficiary of the account unless the spouse signs a form that grants beneficiary status to another person.

What this means is that if I get married then my new spouse is automatically the beneficiary of my 401k. If I have her sign a form granting beneficiary status to someone else, she ceases to be the beneficiary. If she doesn't sign that form and I divorce her---she continues to be the beneficiary of the account unless I remarry or I specifically name someone else to be the beneficiary AFTER my divorce.

In your case...I think she's still the beneficiary by law.

[Khariz]

Also about the accounts that were in his name only that she has emptied since he passed. And the best way to get personal belongings from the house.

This is all going to be part of the probate estate. The probate court can sieze the money that was in his accounts in his name only as property of the estate. His personal belongings are also part of the estate. The probate process will determine who gets what. Someone is going to need a way to prove to the court that she took money out of said accounts and that they should be property of the estate instead. I suggest some type of documentation showing who the account holder was and the balance before she withdrew or something.

[TheRunt]

It is ERISA (Federal Law) mandated that the spouse of the 401k holder is automatically the beneficiary of the account unless the spouse signs a form that grants beneficiary status to another person.

What this means is that if I get married then my new spouse is automatically the beneficiary of my 401k. If I have her sign a form granting beneficiary status to someone else, she ceases to be the beneficiary. If she doesn't sign that form and I divorce her---she continues to be the beneficiary of the account unless I remarry or I specifically name someone else to be the beneficiary AFTER my divorce.

In your case...I think she's still the beneficiary by law.

Yes I understand under federal law they had to distribute it to his wife. What I was wondering if anyone had any knowledge of suing the heir for some/all of the amount. My sister in law talked to an attorney and he told her they could sue I'm wondering if it will be worth the hassle/headache.

[Clove]

It's difficult to get a court to side against a spouse in a probate case. Witness Anna Nicole Smith.

[Sean of the Thread]

And damn that was a lot of money. Wonder what she had planned for it?

Often times when I'm having trouble falling to sleep I think of winning the powerball and what I'd do with it. Lol you would be surprised to know that I come up with about 30 of you PC peoples that would get huge checks as well as some other bizzare ideas.

Like donate 5 million to my old highschool with the condition that they erect a statue of me with the caption "Knowledge Is Good" and laugh about it for the rest of my life.

What do these really absurdly rich people do with their money other than sit on a pile of gold coins like in Duck Tales? I mean besides people like Gates but still you get my point.

[Mighty Nikkisaurus]

Yes I understand under federal law they had to distribute it to his wife. What I was wondering if anyone had any knowledge of suing the heir for some/all of the amount. My sister in law talked to an attorney and he told her they could sue I'm wondering if it will be worth the hassle/headache.

This may come across as sort of nasty of me.. but shouldn't they be worried about getting the family heirlooms, photos, and other irreplaceable stuff rather than some money from his surviving wife?

I get the feeling you guys don't like her, but I'd pick and choose your battles here.

[TheRunt]

This may come across as sort of nasty of me.. but shouldn't they be worried about getting the family heirlooms, photos, and other irreplaceable stuff rather than some money from his surviving wife?

I get the feeling you guys don't like her, but I'd pick and choose your battles here.

Didn't come across nasty to me. But yes they are worried about that, which was included in the original post. I know somewhat how to get access to those which would be having my wife or her sister being appointed administrator then they can literally go in and remove any of his personal property to be divided as they see fit as long as its within legal bounds ie she has to receive half the cash value of said items from the estate. That and except for a few items they actually have most of them because he left them in their mothers house after the divorce. He didn't have space to store them after he moved.

And we did like her. Still do to a point. Its just that she knows that is was his wishes for his 401k to be distributed to his children not her. But she says she doesn't know what she is going to do. That and she's been hitting the gambling boats almost daily since the funeral.

[TheRunt]

It's difficult to get a court to side against a spouse in a probate case. Witness Anna Nicole Smith.

Yes it is but in that case he had a will didn't he? Which would show where the deceased would of wanted the money to go. In this case the deceased showed where he wanted it distributed, but according to 401k regs since he didn't have his wife sign a waiver they have to distribute it to her.

[Clove]

Yes it is but in that case he had a will didn't he? Which would show where the deceased would of wanted the money to go. In this case the deceased showed where he wanted it distributed, but according to 401k regs since he didn't have his wife sign a waiver they have to distribute it to her.Unfortunately you need your spouse's permission to assign 401k funds and they are Federally regulated so State statutes don't apply here. In some States spouses have successfully challenged wills that assigned them less than half of the estate.

[Delonkin]

Unfortunately you need your spouse's permission to assign 401k funds and they are Federally regulated so State statutes don't apply here. In some States spouses have successfully challenged wills that assigned them less than half of the estate.

Clove is correct. If a program/death benefit is governed by federal law then the intestacy laws of a state are trumped. As a general rule, federal will always trump state.

Even if the state laws were not trumped, the money never passes through the estate if there is a beneficiary. Probate can't touch it under these circumstances, as the spouse received the money directly as a beneficiary and not as an heir. Your best bet is to work with the spouse and try to get her to act reasonably. Legally, you do not have a leg to stand on.

:sad:

[Keller]

I know a very good trusts and estates attorney in Indianapolis.

He'd likely be a good resource, even if only to get a reference for a good attorney in your area.

[TheRunt]

I know a very good trusts and estates attorney in Indianapolis.

He'd likely be a good resource, even if only to get a reference for a good attorney in your area.

Thanks that would help. Email is gsrunt@yahoo.com