Legal Question in Wills and Trusts in California
401k without beneficiary or will
My son (a minor) is sole heir to his father's estate since his deceased father did not have a will, was not married, and had no other children. His father's 401k is sizable and had no named beneficiary. The probatable assets (his house equity and 401K) value over $100,000. In California, what is the rule for when and how the 401K gets paid out in this situation. In addition, without a will, does it belong to the estate first, and can it be used to settle his debts before it's turned over to the guardianship account for his son?
3 Answers from Attorneys
Re: 401k without beneficiary or will
It sounds lik you for sure need to get a probate going. The sooner you start the sooner you finish! The 401k may or may not come into the probate. Some 401k plans do NOT pay into the probate estate when there is no beneficiary named. Rather, they pay to the decedent's next of kin. Would still be the child, of course, but may not go through probate. It just depends on the specific 401k plan. I would say the majority do pay to the probate estate. Would love to help you with the probate and guardianship. Give us a call or an email! Good luck!
Re: 401k without beneficiary or will
This is not a simple situation. The first answer is that you would have to probate the father's estate and then distribute the 401k proceeds to the son through the probate. It does as you say "belong to the estate" first. But the other issue is whether not not the son can roll it over without paying all the taxes that are due. He may be able to do so. The second answer is yes it could be used to pay the son's debts but then you have the issue of paying all the taxes due if the 401k plan is cashed out. I would recommend that you discuss this issue with a probate attorney and a CPA attorney before taking any action.
Re: 401k without beneficiary or will
Answered this the first time.
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