Two years no claim for 401K

[Guest dulan]

It has been almost two years since my brother died.

I am his only survivor and the Administrator of his estate.

He was divorced in 1993 from wife #2 and again in 2003 from wife #3.

I have written the company twice claiming the 401K plus called the DOL and they also told me who to write.

The company will not respond to me and I have paid three different attorneys that don't do anything except take money.

Fidelity said that they didn't have a beneficary listed and I talked with one of there supervisors every few days back in 06 .

I then went to a attorney that was a distant relative and he wrote the company and then one of the company attorneys called him to say that my brothe never got wife # 2 removed as beneficary.

They never sent any documents to him as he requested and both ex spouses waived any rights to his 401K in the divorce decree.

After 6 months I was not getting any answers from the first attorney and then I went to attorney #2 gave him 3K up front he wrote probate judge and that was useless. Then told me we needed to find a attorney in GA and left that up to me.

After 6 months of calls and even spending $250 for a on line attorney that advertisted as ERISA specialists but could not answer one question I went back to the first attorney that was a relative of my husband.

Here is what the benefit plan summary says about beneficary and claims.

After giving a defination of the beneficary the plan says it is the last known persons designated in writing by Participant on a form submitted to the Plan Recordkeeper and satisfactory to the Administrative Committee or, in the even no such designatin is made or if no person so designated survives the Participant, or if after ckecking his last known mailing address the whereabouts of a person is unknown and no death benefit claim is submitted to the Administrative Committee by such person within one year after the date of death, the personal representative or such Participant, if any has qualified within fifteen months from the date of his death or, if no personal representative has so qualified, and heirs at law of the Participant whose whereabouts are known by the Administrative Committee. Provided, however if the Participant is Married, then during the such marriage the Participant's Spouse shall automaticallly be the Beneficary unless the Participant waives sthe spousal designation and indicates another person or persons as Beneficary on the same form and the Spouse gives written consent to such waiver and the naming of such person as Beneficary on such form.

If no Beneficaryis identified and located pursuant to the procedure described above by the end of the two year period beginning on the date of death of the Participant, his Participant's Accounts, upon Administrative Committee direction, shall be forfeited as the last day of the Plan Year which icludes the end of such two year period.( Such forfeiture shall then be used to reduce Matching Contributions or Nonelective Contributions for the Plan Year in which forfeited.) However if a Beneficary subsequently is located and he files a written claim with the Administrative Committee for the death benefit which was payable to him and if such person demonstrates to the Administrative Committee's full satisafaction, through a court order or otherwise, that he in fact is such Beneficary, the the Company shall contribute an amount equal dollar for dollar to the forfeiture of such Participant's Accounts and shall credit such amount to a new Accounts established for the deceased Participant and the new Accounts shall be paid to such Beneficary.

The company went into bankruptcy and all the 401K was matched with company stock and after the bankruptcy all the match was taken from the employees so all the money my brother has at Fidelity was what he put into the account.

It has ranged anywhere from $165,00.00 to $210,00.00.

How do I find a attorney that will do what they say when I have paid them money?

Thank You,

dulan

[GMK]

I am not a lawyer, so these are just suggestions, mainly based on standard Summary Plan Description information ...

The Plan Administrator of the 401(k) is responsible for distributions from the 401(k). Look in the Summary Plan Description to find out who is listed as the Plan Administrator. My guess it is your brother's employer.

Once you have sent a written claim for a benefit to the Plan Administrator (which from previous posts, I think you have already done), the Plan Administrator has to distribute the benefit or else provide you with a written or electronic notice of denial. The Plan Administrator is supposed to respond to you within 90 days after the Plan Administrator receives your claim. That response may tell you that the 90 days has been extended to 180 days (total), but you are supposed to get some response within the first 90 days.

If the Plan administrator denies your claim, the Plan Administrator has to send you a notice of denial (written or electronic) within 90 days of receiving your written claim (or 180 days if you were notified that the time for the claim review was extended). That notice of denial has to give the specific reason(s) for the denial of your claim, reference to the specific Plan provision on which the denial is based, a description of any additional material or information needed from you to perfect the claim and an explanation of why that material is necessary, and a description of the Plan's review procedures and the time limits applicable to those procedures, including a statement of your right to bring a civil action under ERISA Section 502(a) following a denial on review. This information about a notice of denial should be in the Summary Plan Description.

If Fidelity is the Plan Administrator, send them a written claim for the benefit and ask them for a Summary Plan Description. If they deny your claim, they have to send a written notice of denial as described above.

If you receive a notice of denial, appeal it. See the notice of denial and the Summary Plan Description for information on how to appeal.

If the appeal is denied, you are again supposed to be sent a notice of denial in writing or electronically.

If the deadlines pass without a notice from the Plan Administrator, send your story (in writing) to the Employee Benefits Security Administration of Department of Labor and request their help in obtaining your benefit from the 401(k).

Sometimes phone calls answer the questions and get the job done. In this case, it all has to be in writing. And keep on keeping copies of what you send.

Good luck.

[Guest dulan]

I have written this request and stating I was making a claim for my brothers benefit for the 401K twice to the employer and also to Fidelity.

I have never gotten anything from them with a denial.

I made both of these claims in writting over a year ago and sent them registered mail.

After I talked to the Dept of labor they told me to get in touch with them if I didn't get any reply in 30 days but then after that I went to the attorney I have and he told me I had to stop making calls and doing searches in other words but out and he would take care of it.

That was in Nov and so far I still have not heard anything and he keeps canceling appts just like the first time I used him.

The benefit plan summary does describe that if anyone making a claim gets a denial they can make a appeal but so far I don't get anything no appeal or anything.

I would like to know if the wording on the beneficary making a claim and if my brother really didn't get his ex wife #2 off as the beneficary does the wording mean that if she does not make a claim after a year then the administrator of the estate can be the beneficary?

I don't understand that part and with the two years since my brothers death I am concerned about his money being forfeited. I do understand that they would have to put it back into a new account if a beneficary made a claim.

Thanks for replying,

dulan

[masteff]

After I talked to the Dept of labor they told me to get in touch with them if I didn't get any reply in 30 days but then after that I went to the attorney I have and he told me I had to stop making calls and doing searches in other words but out and he would take care of it.

That was in Nov and so far I still have not heard anything and he keeps canceling appts just like the first time I used him.

That's one of the problems of using a family member.... you've given that person plenty of opportunity to help and he's not come thru for you. Go back to the Dept of Labor. They are best resource that is at no expense to you. Part of their job is handling things just like this.

[david rigby]

Just in case you have not seen this, scroll down until you get to Chapter 10, What to do if you have problems.

http://www.dol.gov/ebsa/publications/wyskapr.html