QUESTION
If a spouse dies and has stocks and 401K who gets control of that?
Asked on Jul 04th, 2013 on Estate Planning - California
More details to this question:
If a spouse dies and leaves behind stocks and 401K who retains control of that, the living spouse or the children?
20 ANSWERS
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Depends on who is listed as the beneficiary of the 401k plan.
Answered on Jul 10th, 2013 at 6:03 PM
Litigation Attorney serving St. Louis, MO
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Probate Law Center Richard J. Keyes, PC
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See who is the beneficiary designation on the 401(k). If there is no beneficiary designation, then the 401(k) goes through probate. If the stock has a transfer on death provision, then the beneficiary of the TOD gets the stock. If there is no beneficiary designation, then the stock goes through probate. If there is a will and the will is admitted to probate, then the beneficiary(ies) in the will get the stock and 401(k). If there is no will, then the assets go by the laws of intestacy.
Answered on Jul 07th, 2013 at 8:42 PM
Probate Attorney serving St. Louis, MO
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Edward L. Armstrong, P.C.
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As to the 401(k) you need to contact the plan administrator (usually an investment company, bank, insurance company, etc.) and ask about your rights, if any, under the plan. As to the stocks, you need to know if they are titled jointly with a surviving spouse, if they were not jointly held and if they were placed in a trust. If an estate must be opened, this must be done within one year of the death of the spouse. There should be an estate if there were assets that were titled only in the deceased person's name (i.e., not jointly owned or POD or TOD) that are not in a trust. The laws of descent and distribution will apply to the assets in the probate estate if there is no will. Generally, the probate estate of an intestate person (person who dies without a will) will be divided equally between a surviving spouse and any children of the decedent.
Answered on Jul 07th, 2013 at 8:42 PM
Estate Planning Attorney serving Torrance, CA
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The Law Office of Kelvin Green
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This all depends on the accounts, if they have beneficiaries, are payable on death, or if there is a will, ad or the value.
Answered on Jul 07th, 2013 at 8:42 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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It depends. Was there a beneficiary designated on either 401k or stocks? If not, it would depend on whether the decedent left a Will or not. If there was no Will, it would depend on state intestacy laws, as well as exemptions and allowances the spouse can claim. It would be best to see an attorney, if your situation is still not clear.
Answered on Jul 07th, 2013 at 8:41 PM
Thomas Edward Gates
Stocks and 401K plans have beneficiary designations. This is the normal means of distribution since it bypasses probate. If this method of distribution was not used, one-half of the decease's estate is given to the surviving spouse and the remaining one-half is divided amongst the children in equal shares.
Answered on Jul 07th, 2013 at 8:41 PM
2 Awards
It depends if there was a beneficiary designation, a will, how long the marriage was, etc. Speak with a local attorney about the facts of your situation to determine if you have an interest in these items.
Answered on Jul 05th, 2013 at 5:55 PM
2 Awards
If the 401(k) had a beneficiary designation (most do) then the beneficiary designation would control.
Answered on Jul 05th, 2013 at 5:32 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Depends. Were beneficiaries named for the 401k? If so, the beneficiaries get it. If not, then it goes to the estate. Is there a will? If not, then it goes to the heirs. Generally, if no beneficiaries and no will, community property goes to the spouse. It may be that the stocks are not community property, in which case, the property would be split between spouse and children. There are other complications. You need to consult with an attorney about the specifics.
Answered on Jul 05th, 2013 at 5:28 PM
Business Law Attorney serving Livonia, MI
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Gerald A. Bagazinski
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The spouse gets control of the 401(k) account irrespective of who the beneficiary is if the account remains with the company. If the stock is titled in the decedents name alone, then the probate rules will apply.
Answered on Jul 05th, 2013 at 5:19 PM
Bankruptcy Attorney serving Florissant, MO
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Law Offices of Thomas Corcoran Phipps
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It depend on whether there was a trust, or beneficiaries named on the accounts. You will have to review the statements on those investments.
Answered on Jul 05th, 2013 at 5:15 PM
Corporate/Business Attorney serving Beachwood, OH
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Christine Sabio Socrates Attorney at Law
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Normally a 401K has a beneficiary designated. Stocks or brokerage accounts can as well. If not, and the assets are payable to the estate, then it is dependent on the decedent's will. If there is no will, then it is apportioned between the surviving spouse and the kids under the probate laws of decent and distribution.
Answered on Jul 05th, 2013 at 5:00 PM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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It depends on if beneficiary designation and if not the will.
Answered on Jul 05th, 2013 at 4:41 PM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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Generally a person signing up for a 401(K) designates beneficiaries so contact the account manager to find out who those beneficiaries control 401Ks If there is no beneficiaries designated (unlikely) it goes to the estate and whoever is the court appointed Personal representative of of the estate. Have you filed for probate?
Answered on Jul 05th, 2013 at 4:36 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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It depends. 401K should have had beneficiaries named. Many bank and brokerage accounts may also have beneficiaries named. If not, the person may leave a will. If no beneficiaries named and no will, then the state has statutes concerning who will inherit, but no one has control until someone is appointed administrator by the Circuit Court.
Answered on Jul 05th, 2013 at 4:32 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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Depends on whether decedent left a will or not. If no will, children inherit husband's half of assets, but surviving spouse controls those assets. Proceeds from a 401K go to the beneficiary named in the 401K documents.
Answered on Jul 05th, 2013 at 4:25 PM
If there was a will, the Executor would initially take control of all personal property including stocks and 401, after paying admin. costs, debts, then heirs. The surviving spouse may get it all depending on the will. If no will then the court would appoint an administrator. In the case of no will, the proceeds would eventually be paid to the surviving spouse and to the children in accordance with statute.
Answered on Jul 05th, 2013 at 4:10 PM
That portion that is community property goes to the spouse, if there is no Will the spouse inherits not the children.
Answered on Jul 05th, 2013 at 3:51 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Depends on the documents and whether assets are separate property or community property.
Answered on Jul 05th, 2013 at 3:51 PM
Admiralty / Maritime Attorney serving Monrovia, CA
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The Law Office of Nathan Wagner
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It depends. The stock brokerage company and the company that manages the 401k probably asked the deceased spouse to designate a "beneficiary" who would receive the accounts. The beneficiary would then get the accounts. If no beneficiary was designated, then the deceased spouse's will would determine who receives the accounts.
Answered on Jul 05th, 2013 at 3:15 PM