Dear Quentin,
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My father, 75, died without a will. At the time, he was divorced from his fifth wife and had a fiancée. He left behind three children: Me, the oldest at 57, from his first marriage, and a son and daughter, 29 and 32, from his fifth marriage. He was quite well off, being part owner of a business — at least, a “minor” multimillionaire.
However, his fiancée would only give us some of his possessions, and his three cars at the time of his death. She wouldn’t give us any of his legal and financial paperwork. We are pretty sure he didn’t have a will, but we believe he had a life-insurance policy, a 401(k) plan, and other investments. His fiancée swears that she is the beneficiary of his life insurance, but she hasn’t produced any proof.
We have had his mail forwarded to my brother to try and find out who his lawyer is or insurance company is or any paperwork regarding his personal business.
I have several questions:
1. How do we go about finding out if he had life insurance or a will without any paper trail?
2. How do we find out about his checking and savings accounts, and 401(k) without paperwork?
3. We do believe he died intestate and that his assets will have to go through probate court; however, my half brother has taken control of the situation, including having him cremated and sent to him for burial. He gets along great with his sister, but since I’m 25 years older and from the first marriage we were never close, and I feel like they’re “teaming up” with their mother (his most recent ex-wife) to take things from his estate, and not letting me know what’s going on.
My other questions:
4. How do we get to the point of his estate going through probate and how is a third party appointed to oversee that? Can my brother legally just take over? I want to make sure his estate is split evenly between the three of us, and I don’t know how to make that happen when my half brother won’t even communicate with me and my half-sister keeps telling me “he’s handling it.”
5. Also, if he and my sister are listed as beneficiaries on any life insurance policies or 401(k) policy, do I have a legal right to any of it if I’m not listed?
Thank you in advance for your help.
The Eldest Son
Also see: I want to blow the whistle on my former employer’s ‘shady practices,’ but I signed an nondisclosure agreement. Can I break my NDA?
Dear Eldest,
Your late father’s fiancée has the most to lose, which is why she is likely using this time to batten down the hatches with an information blackout. All of his possessions, everything from his wristwatch to his car and home, should go through probate when an administrator is appointed by the surrogate’s court or county courthouse. You should be able to apply to be the administrator of your father’s estate. It’s a lot of work, and even includes filing his taxes.
With that said, I can answer your last two questions (No. 4 and 5) first. No, you don’t have any legal right to your father’s life-insurance policy or 401(k) plan, assuming that they do indeed exist and have your siblings (or anyone else, for that matter) listed as beneficiaries. If there are no listed beneficiaries, these accounts would become part of your father’s overall estate, and go through probate with his bank accounts, house, pension and all his other assets.
Your father’s bank account, broker and lawyer should be able to start the fact-finding process. It’s a good lesson for everyone to get their paperwork in order, and leave a copy in a safe deposit box and/or with a trusted lawyer. Assuming your father died intestate — without a will — his fiancée is not a legal heir and, therefore, would walk away with nothing, unless she was a co-owner of his bank account or listed as a beneficiary on his other accounts.
However, any 11th-hour changes to your father’s listed beneficiaries could raise a red flag. Typically, a person must be of sound mind and not under or subject to duress, restraint, fraud or undue influence to sign a will, a power of attorney document, or other legal and financial documents. A person must understand what they are signing, and have testamentary capacity — that is, he would need to know what he was signing and why, and how much was at stake.
After a person is appointed by the court to speak for the estate, you can then identify insurance payments through transactions on his bank account, and file for a change of address for all of your father’s mail, says Hubert Klein, partner and forensic accountant at EisnerAmper. As for your half brother and sister, Klein says, “What authority did he have to rush the process? Was he [or she] appointed the executor or administrator? You need to ask.”
State law controls the probate process. “Many states have this information online on how the process works — who can file paperwork, who can be appointed as the estate representative, and who can effectuate transactions on behalf of the estate,” he says. “Hidden or non-disclosed assets and accounts can be found, but someone has to speak for the estate in order ensure a proper accounting of all the estate’s assets, and that liabilities are documented for the court.”
The probate process is public, the legal equivalent of washing your dirty linen in the front yard; that will leave little room for siblings or ex-wives or fiancées to muddy the waters. In addition to an administrator/executor, you will need a trust and estate attorney to navigate the process. No one has the right to hijack this process, and the sooner you embark on a fact-finding mission with the help of your father’s bank, and the legal wheels start turning, the better.
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