pog

Thanks MoJo. Due to the merger of our plan into the new plan after the participant had retired, the participant never "accrued an interest in the plan while employed" by us. We never touched his account with the new plan. I believe the plan made partial distributions but still has the bulk of the money because they suspended when the old beneficiary got in touch. There is also an issue of how the plan responded to the old beneficiary's attorney when he first contacted them. They did everything to avoid admitting that they accepted the new form from the new beneficiary after the participant's death. The old beneficiary's attorney says this deceptiveness about the circumstances of the submission is a fiduciary breach in and of itself.

Thank you. I believe there is a reluctance to interplead because the plan accepted the submission of the new form by the new beneficiary AFTER the participant's death, based on the record of an "attempted submission" to us before the participant's death by an unverified third party (regardless of whether that unverified third party is the new beneficiary's girlfriend or not). In addition to legal exposure for the plan, it just doesn't look good.

Well it gets better. The new beneficiary's girlfriend sent the completed form back to us and not to the plan administrator or recordkeeper. After the participant died, the new beneficiary got the plan administrator to accept the form and put it into effect based on the record of this "attempted submission." Then the former beneficiary popped up, and is arguing the "attempted submission" was part of the conspiracy to make a record of the fraudulent form but avoid triggering a confirmation mailing before the participant's death.

Thanks for the reply. The former beneficiary is corresponding with the plan administrator through legal counsel and his identity is confirmed. He has submitted evidence that the e-mail address used to obtain the beneficiary form, which was also put down for the retiree on the completed form, actually belongs to the new beneficiary's girlfriend. He says he recognizes the signature on the form to be forged and all the handwriting on the form to belong to the new beneficiary, who is a family member of the former beneficiary. The former beneficiary is confident an expert handwriting analysis would confirm this. I'm not sure about the E and O insurance.

We are a New York company. An unmarried employee and participant in our 401(k) plan retired three years ago, and maintained his participation in the plan and his existing beneficiary designation after retirement. A year after his retirement, we merged our 401(k) plan into another independently administered plan, and the retiree's account was transferred. The retiree continued his participation in the new plan and made no change to his beneficiary designation at the time of the merger. His account with that plan never received salary deferrals from us due to his retired status. Shortly before the retiree's death, someone claiming to be the retiree contacted our HR department and asked for a blank beneficiary form for the new plan, which we sent to the e-mail address that the person provided. The retiree never had an e-mail address of record in our files. The blank form we sent was used to submit an executed beneficiary form to the administrator of the new plan. Three months later the retiree died. Now the formerly designated beneficiary who lost the benefits because of the new form is claiming that the person who contacted us was an imposter and the e-mail address did not belong to the retired employee, and that the executed form submitted to the new plan was fraudulent (including a forged signature, etc.). The former beneficiary says it was unlawful for us to issue a blank beneficiary form under these circumstances, or to issue a form at all because we never had a direct connection to the retiree's account with the new plan through salary deferrals. Do we have legal exposure to claims by the former beneficiary under ERISA or otherwise? Or are the former beneficiary's claims limited to the new plan for recovery of the benefits? Thank you for any thoughts.