Well I just got burned again by another attorney

[Guest dulan]

I have been trying to find answers regarding my brothers 401K.

I am his only survivor and last Aug when he died I applied to be administrator.

The attorney that I talked to today had a big web site and it stated that they were ERISA attorneys and did free consultations.

I called and someone ask me a lot of details and then told me that the senior attorney would call me toda but I had to give them a 250.00 deposit over the phone.

I was to call at 2:00 and have up to a 30' consultation. Well I thought that finally I would get some answers.

I didn't talk to the attorney that I was told I would have the consultation with and then after explaining things he could not give me one answer.

I didn't learn anything more than before I had the consultation.

In order for him to have any answers he wanted a 7500.00 retainer.

I ask him if he could not give me any answers what did I get for the 250 dollars. He said it was all complicated.

So now this is the third attorney that I have paid and I have nothing in return.

In a brief description my brother was divorced three times he made me beneificary of his life insurance and he told me I was beneficiary of his benefits.

It turns out that he never got the second wife off of his 401K as the beneificary and after talking to his third wife she said that he had always told her that he had made her beneificary when they were married.

Fidelity says they don't show any beneficary and the company attorney was the one the told the first attorney that he never got his second wife off.

From what I read of the summary plan benefit after a year if the beneificary had not made a claim it would go to the estate.

Also in the divorce decree she waived it and it is very specific in the wording.

The money is still in the account and I don't think she would have any idea that she was listed.

I have not been demanding with these attorneys they just tell me things and I pay them and find out they don't know anything about ERISA.

HELP please I can't keep going through this on top of the grief of his death.

dulan

[Guest dbvail]

Dulan,

First, I understand your frustration.

Second, there are good attorneys and not so good attorneys. ERISA is highly specialized and not all attys are well versed.

Third, there are good Third Party Administrators and not so good Third Party Administrators. But the good ones are well versed in ERISA and generally have more experience with issues such as yours. try to find one in your area. They usually are not as pricey as lawyers....because they are not lawyers, just specialists in qualified plan issues. try to find one.

Forth, documents will carry the day. Beneficiary forms and the current plan document will govern. It is hard to advise without concrete documents and facts.

Best of luck.

[davef]

I would think that, if there is a legitimate issue as to who the correct beneficiary should be, the employer (as the administrator of the plan) would want to make sure that the benefit was paid to the right person. I understand your interest in getting to the bottom of this, but I think that the employer also has an obligation to try and get it right. In situations where more than one person believes they are entitled to money (such as with life insurance proceeds), these can be resolved through an interpleader action. If you Google "interpleader" you'll get a better idea of what is involved.

Hopes this gets you pointed in the right direction.

[TPAnnie]

my brother was divorced three times he made me beneficary of his life insurance and he told me I was beneficiary of his benefits.

ERISA Sec. 404(a)(1)(D) requires plan administrator to follow plan documents when determining beneficiaries. Thus, this info will not override a designated beneficiary form.

It turns out that he never got the second wife off of his 401K as the beneficiary and after talking to his third wife she said that he had always told her that he had made her beneficary when they were married.

Fidelity says they don't show any beneficary and the company attorney was the one the told the first attorney that he never got his second wife off.

Also in the divorce decree she waived it and it is very specific in the wording. The money is still in the account and I don't think she would have any idea that she was listed.

I'm assuming the beneficiary form listing spouse #2 was dated sometime during their marriage, not after their divorce.

The Plan Document should have a section pertaining to beneficiaries and divorce. Our document states that a divorce or legal separation revokes the spouse as a Beneficiary unless a decree or QDRO provides otherwise. Therefore, we'd interpret this to mean that even though there's a bene form out there listing spouse #2, she is NOT, due to divorce. If he were still married to #3, she would be the beneficiary; however, since he was also divorced from #3, same thing applies...NOT the beneficiary.

From what I read of the summary plan benefit after a year if the beneficiary had not made a claim it would go to the estate.

This is something of which I've never heard...seems like we have balances languishing around forever!

With whom are you having contact, the Plan Representative, the fund company rep or the Third Party Administrator? I suggest you write a letter, cc'ing all of the aforementioned. As the executor of his estate, you should request copies of the SPD, plan doc (at least the portion relating to determination of benefits upon death) and the beneficiary form they have on file. Attach certified death certificates to each letter. Also, if you can get your hands on the decrees of each divorce, attach copies. Finally, specifically ask in your letter if the Plan Document addresses beneficiaries and divorce...this way they'll have to look it up. Good luck!

[Guest beppie_stark]

Dulan -

Have you made a written request for payment of the benefit on behalf of the estate from the Plan Administrator (probably the Employer)? Have you received a formal denial? Have you (on behalf of your brother's estate) requested a copy of the beneficiary form, the Summary Plan Description and the full plan document?

Yes, these things are complicated and someone may have to pay some legal fees but it could be the Plan Administrator instead of you.

Generally, speaking your brother's third marriage should have superceded his previous designation of his second wife. I do not believe that his subsequent divorce would reinstate the designation of his second wife. I would think it would revert to the plan default designation (probably to his estate if he was single upon his death). Anyway the Plan Administrator is responsible for making payment to the appropriate party. The Plan Administrator will want to get legal advice if you may contest because the plan could be liable for making two payments if they pay the wrong beneficiary and cannot recover.

If you politely pester the Plan Administrator, the administrator should realize their duty.

I see DaveF has answered this more succinctly than me.

[J Simmons]

I agree with prior answer posts that 'concrete documents and facts' are needed. Also, you're trying to find that rare bird of an attorney who really understands ERISA, QDROs and divorce procedure in the state where your brother and wife # 2 divorced.

I do want to give you an idea of what you are facing.

In Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 5th Cir., No. 05-41851, 8/15/07, the employee named his wife as death beneficiary of his retirement benefits.

The employee and wife later divorce. The wife waives her rights to any interest in the employee’s retirement benefits. A QDRO to that effect is signed by divorce judge, but the signed QDRO is never submitted to the plan administrator.

After the employee dies, the plan pays to ex-wife pursuant to that old designated death beneficiary which the employee had never changed.

His estate sues the plan. The federal district court sides with employee’s estate, citing federal common law principles. The plan appeals and the federal appeals court reverses in favor of the plan’s payout to the ex-wife. The federal appeals court explains that in light of the employee not having changed the designation of his death beneficiary per the plan procedures, only a QDRO delivered to the plan administrator would prevail over that old, unchanged designation of beneficiary in favor of the ex-wife.

Austin made a good suggestion to check what the plan documents specify (if anything) in situations like yours.

I think you said that the plan hasn't found the ex-wife designated as the death beneficiary yet. If so, then the plan likely has not yet paid out the benefits in question. As the personal administrator of your brother's estate, you might want to (a) send a certified letter to the plan administrator putting it formally on notice that you are claiming for the estate your brother's benefits, (b) file a motion in the divorce court where the divorce from the 2nd wife was obtained, asking the court to issue a QDRO awarding your brother (i.e., now his estate) all of the benefits, free and clear of the 2nd wife's claims including despite any designations in her favor made prior to her waiving any claim to those benefits, and © present the post-death QDRO to the plan administrator. DoL Reg 2530.206©(2), Example 1.

Without obtaining and presenting to the plan administrator a QDRO, the ex-wife may very well prevail. That's what happened in the Kennedy v DuPont case referred to above.

Again, this is difficult not having the plan documents, a copy of the designation of death beneficiary, and the divorce decree (and waiver) to review. But this is a suggested path.

[masteff]

Generally, speaking your brother's third marriage should have superceded his previous designation of his second wife.

Just to give this point some extra emphasis...

If the Plan is suggesting the 2nd wife is bene, make sure they're aware of 3rd marriage and divorce. That should nullify the designation w/ the 2nd wife on it.

[CTipper]

Dulan,

Are you applying to be the administrator of his estate or of his 401(k) Plan?

Was the second wife named as the beneficiary?

or

Was the last beneficiary designation form signed when he was married to his second wife and "spouse" was listed as the beneficiary?

And, unfortunately, the divorce decree doesn't take precedence over the beneficiary designation.

Who has the last known beneficiary designation form and what exactly does it say for primary beneficiary?

Christopher

[Guest dulan]

Dulan,

Are you applying to be the administrator of his estate or of his 401(k) Plan?

I have been the adminstrator of his estate for a year

I sent his death certificate to the company he had worked for for almost 25 years.

I also sent a copy of my letter of administration. This was certified and I tracked it on line and after I saw that it was signed for I waited a week or so and then I started calling Fidelity.

If I called the company where he had worked I would be told that they didn't have anything to do with Fidelity that they were a separate vendor

I am my brothers only survivor.

He died suddenly and I had to just gather papers at his house and what ever I could find.

He made me beneficiary of his life insurance and that came through very easly.

I sent the papers to his credit union and they closed the account and sent me a check made to the estate

After months of calling Fidelity I got to working with one of there supervisors.

She would tell me that they didn't have any beneficary on file.

They were sending it back to the companys legal department Fidelity did this several times.

I wrote a letter saying I was claiming his 401K on behalf of his estate and sent them a copy of my letter of administration.

I requested a summary plan benefit.

Nothing happened.

One day I got a call from the company saying that I needed to file a appeal with Fidelity. When I called Fidelity they told me that there was nothing to appeal because they didn't have a beneficary on file.

I hired a attoney that was in my husbands family.

He wrote the company and Fidelity and that is how I found out that my brother never got wife number 2 off as his beneficary.

He was married again after that.

he was married to his second wife and "spouse" was listed as the beneficiary?

He was not married when he passed away. He had been divorced from wife 3 for about 5 years. He told me when they first got married he had to put her on as his beneficary.

I think he must have done that and then as soon as he was divorced from her he went immediately and changed it to me.

I don't know if the company messed up when Fidelity didn't have any beneficary. For the company to tell the first attorney that wife number 2 was the one they had on file, then he married a 3rd time.

This divorce decree from wife 2 clearly states that she waives any rights to it.

It is written very specific.

There has not been any claim made for it. I have a new attorney that wrote the probate judge and her reply was it was a state of equitible distrubition.

I got a call from the new attorney's office and they had talked to Fidelity and they had never had a case like this.

That was last week.

I have not filed any of the correct paper work to apply for the 401K.

So we are in the process of doing that.

The state is GA. The third wife has talked to me and I told her this situation and she said that he had told her that he had made her the beneficary when they were married.

So he told both of us that and Fidelity does not show one.

I almost think the company messed up.

He took his last divorce decree to work and they needed that before he changed me over to his life insurance. I realize these are all different benefits. He thought he had done these changes and something just does not seem right.

Fidelity not having one on file and while he was married to wife 3 he had her as beneficary but the company said that he never got the second wife off.

Really I just want my brother back.

I know that does not apply to this board.

But this is money and I would want him back if it were all the money in the world.

We were very close. I had to clean his blood. He was dead three days before they went to look for him.

I have PTSD from what I saw from a heart attack.

So I just want to get this over.

And, unfortunately, the divorce decree doesn't take precedence over the beneficiary designation.

Who has the last known beneficiary designation form and what exactly does it say for primary beneficiary?

Fidelity does not show any beneficary the company attorney told the first attorney that the second wife was still showing.

Recently I have been told that some states the spouse is taken off automatically unless there is a QDRO and there was not one.

Christopher