Legal Question in Wills and Trusts in Florida

My brother passed. Not married and no children. He did not designate a beneficiary on his 401K. I am the executrix and beneficiary named in his Will. Fidelity is insisting that his 401K go to next of kin, which is my mother who is in a nursing home on Medicaid. Why doesn't the Will trump Fidelity's policy?

Asked on 9/03/15, 6:12 pm

3 Answers from Attorneys

David Slater David P. Slater, Esq.

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Without reading their documents, no one can answer. Normally, if their is no named beneficiary, the 401 should go to the estate.

Answered on 9/03/15, 6:45 pm

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Douglas R. Coenson, Esq.

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If there is no beneficiary listed, it needs to go through probate with the rest of the estate. If the will is valid and admitted through probate, typically the funds will go through as directed in the will (or via the residuary clause in the will). Perhaps there is a provision in the policy that directs the order of preference. If not, and if there is no will, then in Florida, the preference would be spouse and children but since none here, then to the parents. It sounds like Fidelity may be referencing intestacy (without a will) law. Before taking any action, I would suggest contacting a probate attorney if you haven't already.

Answered on 9/03/15, 8:31 pm

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