Legal Question in Wills and Trusts in California
401k without beneficiery 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 gardianship account for his son?
2 Answers from Attorneys
Re: 401k without beneficiery or will
Someone interested in the estate will have to file for letters of administration in a probate to probate his father's estate. That could be you. Once you are appointed you will then marshall the assets, pay the debts and apply to the court for an order to distribute the remaining assets to your son. As a minor, it will have to be placed in a trust account until he reaches 18 years old.
The cost of the legal help you require will be paid from the estate.
Re: 401k without beneficiery or will
Thank you for your posting on LawGuru.com, and the opportunity for me to help you by responding to your posting.
The answer to your question is that it would be very unusual indeed for a 401(k) to not have any beneficiaries stated, since he would be required by law to name a beneficiary under the ERISA act to even open a 401(k).
Without a will, all assets would have to go through probate before distribution, although normally that would not be the case with a 401(k), since they are distributed upon death.
I hope this helps. If you do have other questions, feel that you need legal representation, or want legal advice, please feel free to email me directly at [email protected]. It's my pleasure to help in any way that I can. Thank you.
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