Legal Question in Wills and Trusts in New York

Situation: Sibling past away and had only a fixed annuity with 3 listed beneficiaries in his will, but not listed with the annuity company. I was told a fixed annuity is very similar to life insurance and that it does not have to be probated and gets paid directly to the beneficiaries.

The annuity company says since nobody was listed with their company, that an Executor had to be named and describes somewhat of a probate process that has to take place. There is no personal property probated just a rough amount of the annuity for 210,000.

A claim was put against these funds. The annuity company will not pay out a lump sum and will only pay according to the payment structure, which goes on for up to 8 years. No payment will be received until 2 years.

QUESTION: Should a fixed annuity (3 beneficiaries in the will, but not listed with the annuity company) even be probated in this situation? Can anyone even be legally entitled to claim these funds being there are already 3 listed beneficiaries in the will? Does this person legally have to be paid anything being it is not actual property or can they and why?

Is there anything else I am missing about this situation that can be of help?

Sorry about the length, it's complicated...


Asked on 1/03/10, 8:19 am

2 Answers from Attorneys
Michael Markowitz Michael A. Markowitz, PC

QUESTION: Should a fixed annuity (3 beneficiaries in the will, but not listed with the annuity company) even be probated in this situation?

Answer. Since the decedent never listed the individuals with the annuity company, then the will must be probated.

Q. Can anyone even be legally entitled to claim these funds being there are already 3 listed beneficiaries in the will?

A. Only the estate is legally entitled to claim these funds.

Q. Is there anything else I am missing about this situation that can be of help?

A. The answer given by the annuity company is correct. You have to probate the will and receive Letters Testamentary. With the Letters you would be able to have the estate collect on the annuity, and distribute the funds to the beneficiaries under the will.

Mike.

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Answered on 1/08/10, 8:58 am
Rudolf Karvay Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.

Since there are no beneficiaries named on the annuity, the estate is the beneficiary. Therefore, your sibling's will must be admitted to probate and an executor appointed. The executor may then deal with the annuity company and arrange for distribution or payment to the beneficiaries of the will.

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Answered on 1/08/10, 9:15 am


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