Dirty deeds by wife and Bank rep on transfer of 403b

[Guest vito]

Hello all and thank you for taking the time to look at this. I am hopeful that somebody reading this might have the information that I need to make the right decisions.

I'll try to keep this as condensed as possible, so there may be important details I've missed. Please ask if you need more detail.

The details:

• wife is fired by employer with 403b (2009)
• wife has cancer and short time to live ( diagnosed Jan2010 - deceased Mar 2011)
• wife has daughter from previous marriage
• wife asks me to sign spousal consent form to transfer 403b to IRA with XYZ Bank (around Dec 2010)
• I ask bank rep the following two questions - 1) will I remain the beneficiary - answer Yes 2) will it continue to require my signature to change the beneficiary info after converted to IRA - answer Yes
• I sign a document titled Spousal Consent - from what I recall on the doc there was no information regarding death, or giving up rights, basically a document saying that we the bank want to manage this account to provide you the best returns blah blah blah.
• I later discover on an IRA statement that the wife has changed beneficiary to the daughter
• my copy of what was signed goes missing (daughter suspected)
• I call the bank rep - rep won't talk to me
• I go to the bank - they won't talk to me (not a named beneficiary)
• try to get copy of signed Spousal Consent to see what it says from bank, ex-employer, two 403b funds (Vanguard, Fidelity) - no success
• my attorney ask the bank for copy of document from the bank and they tell him they have no copy of any documents ever signed by me
• as part of the ongoing estate battle - the daughter (also executrix and beneficiary of bank accounts, land, life insurance, ...) supposedly looks into this and also cannot get any documents from the bank or funds - according to her lawyer

I have looked at multiple Spousal Consent forms from my employer and online source and universally, they all have language in them that clearly state you may be giving up your rights to the money, etc. The document I signed had nothing like that (from what I recall). Clearly I knew wife was going to die and tried to carefully review the consent form for any similar language and nothing raised any flags. I continue to believe that the bank rep has a fiduciary responsibility to me as a beneficiary to inform me accurately about the impact of the transfer to IRA.

Is all hope lost? I have had a very difficult time finding anyone well versed in this subject - please help.

[ETA Consulting LLC]

When a distribution is rolled over, those funds take on the characteristics of the vehicle they are rolled into. Hence, you consented to a distribution from the 403(b) where your consent was required for that distribution to get issued. IRAs do not contain any spousal consent provisions; meaning your spouse would've been free to name any beneficiary without your consent.

Hope this helps.

Good Luck!

[Guest vito]

Granted and only too well understood, but wouldn't the rep have to be truthful about that when directly asked about requiring my signature to change beneficiaries?

[ETA Consulting LLC]

There is a service failure on the rep's part for providing inaccurate info. This, unfortunately, happens a high percentage of the time. Whether or not there is a legal remedy would be beyond the scope of retirement planning. Your contention is that the misinformation he provided led you to make a decision that you would've never made had you been properly informed. In the meantime, this misinformation conveniently earned him a commissionable sale of an IRA product.

This appears to be a civil issue.

Good Luck!

[Guest vito]

Absolutely correct.

If anybody reading this has experience in this arena, any guidance would be greatly appreciated. My ultimate goal is to reclaim the account funds.

[K2retire]

You may have better luck getting a copy of the form you signed from the 403(b) provider than the IRA provider. It would have been their form and they probably never provided a copy to the bank.

[Guest vito]

The only form signed was with the bank and nobody will provide a copy to me. The bank claims to not have a copy of it and neither 403b provider will discuss it with me.

[rcline46]

If no one has spousal consent, then the assets were transferred to the IRA illegally! This is because the 403(b) required spousal consent. This forms the basis for a complaint since you are the beneficiary of the plan distribution. If they cannot produce the spousal consent form, then they have to pay you the value of the account EVEN IF ALREADY DISTRIBUTED.

[Guest vito]

How can I get them to pay when they won't speak to me or my attorney?

This is where I've been for the last two years. The thought was that the retirement account could be used as a negotiating tool for settling the estate, though it is probably never going to happen since the daughter does not seem willing to budge on anything. The daughter got everything in less than ethical ways, though apparently just legal - at least for the other estate assets (bank accounts, real estate property, life ins.). Basically I am left with applying for a one year support under GA law against an estate that on paper shows as bust since all the assets were transferred to the daughter during the last couple months of my wife's life. It may be that there was undue influence, though proving that will be nearly impossible and cost prohibitive. The retirement account, on the other hand, may be the last ray of hope to reclaim any assets from the estate for me.

[Hojo]

I think step one is to contact the Plan Sponsor of the 403(b) and ask for a copy of the spousal consent form. It's not the banks responsibility or the IRA's, but the 403(b) Plan's. If you are the confirmed spouse when she terminated, they have to give it to you. If they won't return your phone calls, go to their office.

[GMK]

And if you haven't been, start putting all of your requests for information, forms, etc. in writing and keep a copy of each letter.