Do I need to file a probate?

M

Marybell

Member
Jurisdiction
Kansas
My husband passed away at the beginning of 2020. He has 401K at the company where he worked. He was separated from the company (fired) a month prior his passing but he didn't have a chance to roll over his 401K into IRA of his choice. His former Employer is also the plan administrator.
I expect that I'm the beneficiary of his 401K however I don't know for sure. I have provided former Employer with his death certificate and contacted them several times about 401K. The company doesn't talk to me. They haven't responded to my voicemail, they don't answer the phone when I tell the secretary who's calling, they ignored certified mail I sent.
As well, we have a lot of debt, most in my husband's name. We were preparing to file bankruptcy before my husband passed away. I know that debt is a different topic. My question is in regards to his 401K. Is there a way, besides opening a probate, to have his former company start working with his 401K? Is there a time frame that they legally have to do required steps in regards of transferring his 401K to heirs? Soon it will be 2 months since his passing.
Speaking of other assets, there are 2 vehicles that are in his name, but in my state vehicles can be transferred without a probate. No other assets. Thank you
 
Marybell said:
Is there a way, besides opening a probate, to have his former company start working with his 401K?
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Assuming he designated a beneficiary, the money in his 401k is not an asset of his probate estate. It passes to the named beneficiary outside the estate. Note that it's theoretically possible that he designated his estate as beneficiary, in which case the money would be an estate asset. Also, if he didn't designate a beneficiary, that would typically also result in the money going into the estate.

If the company isn't responding to you about this, you might need to retain the services of a lawyer.
 
thank you. I have contacted Kansas legal services, and we talked over the phone, but unfortunately they are not able to help me in this situation (besides a phone conversation). The purpose of me posting here is to get a better understanding of the issues.
 
zddoodah said:
Assuming he designated a beneficiary, the money in his 401k is not an asset of his probate estate. It passes to the named beneficiary outside the estate. Note that it's theoretically possible that he designated his estate as beneficiary, in which case the money would be an estate asset. Also, if he didn't designate a beneficiary, that would typically also result in the money going into the estate.

If the company isn't responding to you about this, you might need to retain the services of a lawyer.
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thank you. I doubt he would designated the estate, no reasons for doing this.
Is my understanding correct that if I had to open a probate, I wouldn't even be allowed to enter 401K in it at all? So basically, I wouldn't have anything to enter at all...
 
Marybell said:
Is my understanding correct that if I had to open a probate, I wouldn't even be allowed to enter 401K in it at all? So basically, I wouldn't have anything to enter at all...
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I'm not sure what your question means, but there isn't really anything for you to do until you get some answers from the former employer, and it sounds like you're going to need assistance from an attorney for that.
 
Marybell said:
Is my understanding correct that if I had to open a probate, I wouldn't even be allowed to enter 401K in it at all?
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Not correct. Once you have been appointed representative of the estate you might get more cooperation. If you don't, you'll be able to subpoena the 401(k) records and the court will compel the employer to cooperate.

You'd be wise to consult an attorney.
 
Marybell said:
I expect that I'm the beneficiary of his 401K however I don't know for sure.
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A surviving spouse is almost always a beneficiary.

Even if a spouse were disinherited, Kansas law provides a remedy that permits the spouse to inherit from the estate.

If a person dies without a will, a surviving spouse inherits through Kansas' "intestate succession" laws.


This KS lawyer says: "You are not necessarily responsible for the debts of your spouse. Your spouse died. You have become the executor of his or her estate. ... If the debt was incurred for necessary goods and services, the answer is yes."

Am I Responsible for the Debts of My Deceased Spouse?

Maybe there is no DESIGNATED beneficiary.
If you are not married when you die and you have not designated a beneficiary — or if your named beneficiary has predeceased you — your 401k becomes part of your estate.
The ultimate recipients of your 401k funds are determined based on whether or not you die with a valid will.

https://www.sapling.com/12012309/happens-beneficiary-401k

============================

Finally we get to the bottom of the heap:

If you are married at the time of your death, federal law provides that in most situations your 401k automatically passes to your spouse, regardless of whether you have designated a different beneficiary or no beneficiary at all.

The law makes an exception if your spouse has signed a written waiver of his/her right to inherit your 401k.

If you are not married when you die and you have not designated a beneficiary — or if your named beneficiary has predeceased you — your 401k becomes part of your estate.

The ultimate recipients of your 401k funds are determined based on whether or not you die with (or without) a valid will.

A KS lawyer explains intestacy laws in KS:

A Quick Guide to Kansas's Laws of Intestate Succession - Wichita Family Law Attorney - Divorce & Custody Lawyer in Wichita Kansas

Who Inherits Your Estate If You Die Without a Will in Kansas?
 
There are a few new developments in the situation. I hired an attorney to contact the employer , the employer responded. My husband's employer said that there is no designation of beneficiary that my husband left, but according to the plan description if you want your spouse to be the beneficiary then you don't need to designate the beneficiary (I guess this is the reason why he didn't designate the beneficiary).
I also just found out that I'm just an authorized user on 2 closed credit card accounts with quite large balances (I used to think I was the joint owner and was liable for balances). Which means that I don't really have anything to file bankruptcy over. Some medical bills in his name may be turned over to me, but all large debt (personal loans, credit cards) are in his name only.
With this being said, I m going to pay off balances on the vehicles and transfer titles into my name (tag office said with no will I will be the heir).
Here is the question: IF some of his creditors file creditors probate, is my understanding correct that they won't have anything to take (vehicles and 401 K get inherited by me, and there is nothing else that he had)
There was almost no money on our shared accounts at the moment of his passing (if this matters)
 
Marybell said:
There are a few new developments in the situation. I hired an attorney to contact the employer , the employer responded. My husband's employer said that there is no designation of beneficiary that my husband left, but according to the plan description if you want your spouse to be the beneficiary then you don't need to designate the beneficiary (I guess this is the reason why he didn't designate the beneficiary).
I also just found out that I'm just an authorized user on 2 closed credit card accounts with quite large balances (I used to think I was the joint owner and was liable for balances). Which means that I don't really have anything to file bankruptcy over. Some medical bills in his name may be turned over to me, but all large debt (personal loans, credit cards) are in his name only.
With this being said, I m going to pay off balances on the vehicles and transfer titles into my name (tag office said with no will I will be the heir).
Here is the question: IF some of his creditors file creditors probate, is my understanding correct that they won't have anything to take (vehicles and 401 K get inherited by me, and there is nothing else that he had)
There was almost no money on our shared accounts at the moment of his passing (if this matters)
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Because there are creditors, you may have a problem if you take the cars. It might be more wise to let the cars go and use that money to buy cars on your own. You really need to talk to the lawyer about this. The "tag office" cannot give you legal advice.
 
Well when he died he didn't really own the vehicles. thus they shouldn't be part of his "estate". But I understand your point (about talking to a lawyer)
I won't be able to get anything decent for amount of unpaid balances. Plus I need two vehicles
 
Update. I looked more attentively at how exactly titles are getting transferred from one spouse to the other. I would have to sign small estate affidavit where I would have to sign under "I swear that all claims against the deceased or his estate have been or will be paid", of course I can't sign under this. The Attorney I talked to advised me to wait for 6 months since death, then transfer titles knowing that we are safe from creditors.
401K is getting figured out without a probate. There is no other assets. No attorney I was talking to advised me to file a probate.
I just received the second letter from some sort of a legal company who asks again to notify them whether or not probate has been open and how to contact the appointed representative.
What I don't understand: Suppose this legal group decides to file a probate. Would it be bad for me that I haven't filed a probate first or it doesn't really matter? Another attorney told me that its very unlikely that a creditor opens a probate when there are no assets to take (he said, they know if there are assets present). Then, in a situation of them opening a probate, how would a judge look at the vehicle situation? I have been making payments for both since my husband died, otherwise vehicles would have been taken by the bank by now. The remaining family members use both vehicles to drive.
The highest amount owed to one creditor is $10,900. Other are less. I'm only an authorized user on couple credit cards accounts. My credit report shows these accounts but I will be asking to remove them from my report.
Should I answer to the legal group saying that "No, no probate is open because there is no assets left after my husband"? Would it prevent them from opening a probate?
 
Marybell said:
Should I answer to the legal group saying that "No, no probate is open because there is no assets left after my husband"? Would it prevent them from opening a probate?
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You have no legal duty to answer questions.

As far as probate is concerned, the first step to probate is to file a petition.

Filing probate must happen within 6 months after the date of death in Kansas.

Persons having knowledge and access to a will may offer it for probate at any time within the 6 months following the death.

You have six months to grieve and mourn the loss of your loved one.

If you wish to take five months and 29 days before filing probate, take the time to do so.
 
Thank you Army Judge.
There is a difference between "I can" and "I should"
Is it perfectly fine if I don't file a probate given that there is not that many assets to probate.
In other words, would a judge consider absence of probate filed by me as no desire to claim inheritance on the vehicles (I am also not getting the vehicles through small estate affidavit, at least within 6 months), and thus, would assign vehicles to those who have filed a probate (a legal company on behalf of the debtor)
After 6 months, would I be able to claim the vehicles through small estate affidavit, if nobody else files a probate before that? The registration expires in August, while 6 months will be over at the beginning of July.
 
Marybell said:
Is it perfectly fine if I don't file a probate given that there is not that many assets to probate.
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Maybe, but you need to have your position evaluated by a licensed attorney in Kansas.

Anything you learn on the internet is GENERAL information, unspecific to YOUR position and circumstance.

Your reluctance and resistance to seek REAL legal assistance MIGHT end up harming you.

On the other hand, the best advice my father ever gave me is, "When you're unsure of what to do, doing nothing is very OFTEN the least harmful action to take."

The message I was attempting to convey to you is that you have six months in Kansas to file probate, assuming probate is necessary.

Necessary doesn't mean legal.

The worst thing that can happen if one fails to file probate is that person MIGHT lose out on acquiring certain assets.

The way I look at that is that I have my own stuff and I'm not a vulture waiting for relatives to kick the bucket.

In other word, I'll never miss what I never owned.
 
army judge said:
Your reluctance and resistance to seek REAL legal assistance MIGHT end up harming you.
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what makes you think I m not seeking REAL legal advice?
I have been talking to 3 REAL attorneys. One was through free legal services, we are still in touch through email. I paid to another one to help get things moving in regards to 401K, and it is moving. I paid a certain flat fee for a particular service, and he won't do anything else.
Another one gave me a lot of useful advice via email. On some questions, the 3 had different opinions.
If a legal action needed on my side, I would - again - retain someone.
I read at the top of this forum heading "Legal help and advice" - this is the reason why I ask my questions here, in addition to asking REAL attorneys
 
army judge said:
The way I look at that is that I have my own stuff and I'm not a vulture waiting for relatives to kick the bucket.

In other word, I'll never miss what I never owned.
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That's good for you.
I'm a single mother, whose deceased husband was earning much more income than I was. I don't have money to buy replacement vehicles to use. Vehicle is a necessity to have where I live. When HE was making payments, he was doing it out of our shared finances. I'm the one who continues to make payments after he died.
 
Marybell said:
'm a single mother, whose deceased husband was earning much more income than I was.
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My first wife died of a heart attack one morning at age 26. I was serving on active duty in the army in the jungles of Nam. It took a week for me to return to make the arrangements and comfort my children. I suddenly became a single parent and remained one until my youngest child graduated from college.

I rarely speak about it because one does what one must to survive.
Being a single parent wasn't hard, it wasn't easy, it just was; I had young children to comfort and raise to become responsible adults and citizens.

Marybell said:
I'm the one who continues to make payments after he died.
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Been there, done that, have the scars and wounds to prove it!
 

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