Roycal

I'd also look at this from the employer/plan sponsor's nonfiduciary role. In simple terms, the employer presumably maintains the plan as an employee benefit. The end of that benefit is getting money to the former employee or his survivors. I'd think the employer would want to ensure that. So why not eliminate the fiduciary cost issue by having the employer absorb the cost as a business expense of maintaining the plan. If I were the employer, that's what I think I'd do. From a fiduciary standpoint, a consideration should be, "How likely is it that the DOL's Lost and Found Data Base is going to be effective"? That's going to be tough to evaluate. Based on my own experience dealing with the DOL, I'd say it's not likely to be effective. What we don't know is whether the DOL's database will be set up and managed well. It sounds good in theory, but remember that humans at the DOL will be in charge. On the other hand, maybe for those few cases it would work out it would be worth it.

As usual, Gulia makes sense. If you're talking about real money, then you need real legal advice. Otherwise, just go with the custodian, the easy route.

I back up Bill Presson. The recordkeeper is clearly at fault and should be held accountable. You may need an attorney to help, but that could be expensive. I'd press for the recordkeeper to pay your legal expenses. One thing for sure, the recordkeeper is incompetent and the plan's fiduciaries would be breaching their fiduciary responsibilities if they go ahead and use this recordkeeper after the mess is cleaned up.

I'd back up Mr. Feldt in suggesting that you decline the work and send them somewhere else (I believe that's what he's saying). However, that's based on the facts as you present them, and to give you my best take I'd need a lot more facts.

You need to go to an experienced ERISA attorney for advice.

We could write a whole book on this subject, could we not? Just a couple of points. From the ERISA definitions: Sec. 3(16)(A)(i) & (ii). First, 3(16)(A)(i) provides that the "administrator" (not plan administrator, although that's the obvious meaning): is "the person specifically so designated by the terms of the instrument under which the plan is operated." Second, 3(16)(A)(ii) provides that if no one is expressly designated as administrator, the "plan sponsor" is the administrator. When I was in the business of drafting plans I'd always specifically designate the plan sponsor (normally the employer) as the administrator of the plan. Although I say "always," I cannot swear that there no exceptions. I took this approach with employers small and very large because the statute pointed in that direction and because since it's the employer's plan, the employer is the logical person to saddle with the legal responsibilities and liabilities of the administrator. Note that ERISA includes the term "plan administrator" 149 times and the term "administrator" alone 102 times. The term "named fiduciary" also comes into play. The term is used 20 times in ERISA and is defined in Sec. 402(a)(2) as follows: ‘‘'named fiduciary'’’ means a fiduciary who is named in the plan instrument, or who, pursuant to a procedure specified in the plan, is identified as a fiduciary (A) by a person who is an employer or employee organization with respect to the plan or (B) by such an employer and such an employee organization acting jointly." Backing up a paragraph, Sec. 402(a)(1) says that the instrument establishing the plan must "provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan." Again, I "always" designated the plan sponsor/employer as a named fiduciary because, in my opinion, the employer is the person whose plan it is and who therefore should "have authority to control and manage the operation and administration of the plan." Of course, there will always be real people who will be causing the employer (here I am speaking of a corporation as the employer) to act -- H.R. people, finance people, etc. If they believe that by acting as employees of the employer they are going to avoid personal fiduciary responsibility, good luck with that. To anyone, a natural person, who touches a plan's operations, inside the employer or outside (such as a TPA or "directed" trustee), caveat emptor.

What the estate(s) needs is a Florida lawyer to provide advice. Sounds like these estates are large and therefore set up with wills, trusts, and executors. The executor needs to be involved, and the executor needs to have a lawyer (if not a lawyer) If you, guestdelta, are an IRA administrator or the like, not an attorney (or maybe a CPA), you should not be messing with this yourself. Do not rely on what JP Morgan tells you.

Bri's answer is absolutely correct. That's always been a fundamental coverage exclusion rule. In the plan document exclude non-resident aliens with no US source income. Then make sure you document the excluded employees, which can be tricky if you are talking about a large group of potential exclusions. Regarding the comment on Fidelity. " . . . one would think they know what they're talking about when it comes to 401ks" One might think so, but one would be wrong. Same with Vanguard and the other biggies in the game. Their business is investing assets, not in providing legal advice. It may also be that Fidelity (and the others) don't want to get involved with plans that have other than "routine" situations -- they may conclude that the risk isn't worth it for the money they'd make. I speak from experience.

If you go back and look at ERISA's history, particularly the original conference committee reports, you will see that the service-measuring rules adopted in ERISA are intended to be the only way you can exclude employees based on service. The intent was to eliminate temp and part-times (and subterfuges thereof) as classes you could per se exclude. People tend forget this, and that includes even the IRS on occasion. https://www.congress.gov/bill/93rd-congress/house-bill/2/all-info Also, though not technically history, the report of staff of the joint committee on taxation is useful, but I can't quickly find a link. Although there may have been subsequent statutory changes, I've been out of the business for about 14 years, and am not aware of them.

Sure, different contributions for different group members would be fine if permitted under plan document. Plan document -- always see what it say first. Test for discrimination within the group as you normally would. If only NHCEs in the group receive the contribution, obviously no problem. Otherwise NHCEs vs. HCEs.

Amend the plan to clear this up (if necessary or appropriate) and make sure participants have timely notice of the change and how it will be put into effect.

I have had the IRS challenge early terminations, but that was a very long time ago. Sale of company and new owners would seem like a legit reason for termination due to material change in circumstances. I'd have no problem arguing that. 5310 is not required, but certainly the best practice. I would not bless a termination without one.

Only more questions. Does not the plan document say what happens when there is no valid beneficiary designation? Surely it must, What does the plan administrator think? Has the plan administrator taken a look at the "form" and made a decision as it should as a fiduciary? What does the employer mean when it says the beneficiary form is incomplete? The question is, "Is it valid or not?" Who's in charge here? That's the big question. TRP is not, I assume, a responsible fiduciary and I would think had no authority to "freeze" the account. Is litigation actually pending, a suit filed? Time for the employer to get it's ERISA legal counsel involved. When all is said and done it may be wise for the employer to reevaluate it's relationship with TRP. I know they are a mutual fund company, but as to their ability to help run plans I have no idea. As to my experience, with major players like Vanguard and Fidelity, when they screw up they bit the bullet, fix it, and move on.

5.4k Posted yesterday at 01:59 P "It's too much. They need to give us a minute!" But remember that they don't care about you/us.

Absent an error, I don't see how you can "unallocate." Of course, this begs the question, what constitutes an allocation? From your facts there's not enough here to tell. I agree with others that the client should consult his ERISA legal counsel on this one. Moreover, it we're not talking about much money, just let it go.