My fiance named as a beneficiary for his 401K, but his daughter is in his will. Does the beneficiary override the will?
Total Comments: 7
Posted: Fri Aug 06, 2010 12:41 am Post Subject:
Yup 100% of the time. The Will simply recommends what to do with all the stuff that's not already spoken for.
Posted: Fri Aug 06, 2010 05:22 am Post Subject:
On top of that, where certain retirement plans are concerned (those governed under ERISA), the current spouse is often the de facto beneficiary, even if a former spouse was named and never changed (deliberately or inadvertently). For the current spouse to be displaced, they normally have to sign off on their right to the proceeds -- very much the same as an irrevocable beneficiary in life insurance -- even when it comes to taking a loan against one's 401(k) or 403(b) plan assets.
Sometimes, in a divorce situation, the court may even order a physical division of the retirement plan assets on behalf of the departing spouse to guarantee his or her entitlement.
Posted: Sat Sep 11, 2010 12:59 pm Post Subject:
Sometimes, in a divorce situation, the court may even order a physical division of the retirement plan assets on behalf of the departing spouse to guarantee his or her entitlement.
It seemed to be step that the court takes to safeguard the interests of the departing spouse. I'm wondering if it's at all a hassle-free process.
Posted: Sun Sep 12, 2010 12:32 pm Post Subject:
step that the court takes to safeguard the interests of the departing spouse
In a "community property" state such as California, it is less about "safeguarding the interests" than it is a simple division of the property. Depending on the value of the retirement account compared to all "community" assets, a court is not bound to divide retirement plan/pension assets, but could award other assets as equivalent value.
It's mostly a function of the attorneys to work out a compromise and for the court to rubber stamp the order. When the parties cannot come to an "amicable" resolution, then the court has broader authority to order certain things be awarded to one party or the other.
Having a pension plan (a lifetime income situation) compared to the present value of a 401(k) or IRA account is what usually leads to a "division" of the retirement assets. The pension plan trustee will have to accommodate the court's order and determine separate pension amounts for the two former spouses.
Hassle-free? Not when attorneys are involved. And judges are attorneys, too. It's only hassle-free when the two departing spouses can agree on everything without the assistance of an attorney and then find one attorney to draw up the formal paperwork. That's known as an uncontested action. Sometimes even those are not entirely amicable.
Posted: Fri Apr 08, 2011 04:16 am Post Subject: will vs joint tenancy
Live in state of AZ. Husband owns property in Canada with his daughter as a joint tenant with rights of survivorship. If he draws up a will in AZ and states that he wants his wife to inherit the property upon his death, can that take place? FYI, to add the wife to the property would involve a capital gains tax to be paid by the husband.
Posted: Fri Apr 08, 2011 06:13 am Post Subject:
Well, I'm not aware of the property laws in AZ. But I don't see any problem with the wife inheriting the portion that her husband owns (after he passes away). Let's wait for the others to share their views regarding this.
Posted: Sat Apr 09, 2011 12:09 am Post Subject:
But I don't see any problem with the wife inheriting the portion that her husband owns (after he passes away)
Jeorge doesn't see any problems. Then again, jeorge probably did not see the words "Joint Tenants with Right of Survivorship" either.
JTWROS means exactly that . . . the surviving JOINT owner receives the FULL MEASURE of the deceased former joint owner's share in the property. A surviving spouse who is not on title as one of the joint owners DOES NOT receive the deceased spouse's share -- with or without a will in place.
To the best of my knowledge, the laws of Canada are not substantially different than US law on this. The joint owners' interests are entirely outside the estate/probate turmoil that can follow a death. Property interest transfers instantaneously (and, generally, irreversibly) at the moment of death.
If the OP is to inherit the husband's interest in the Canadian property, the OP needs to be on title. If that means a taxable event, so be it. There is no other way.
Posted: Fri Aug 06, 2010 12:41 am Post Subject:
Yup 100% of the time. The Will simply recommends what to do with all the stuff that's not already spoken for.
Posted: Fri Aug 06, 2010 05:22 am Post Subject:
On top of that, where certain retirement plans are concerned (those governed under ERISA), the current spouse is often the de facto beneficiary, even if a former spouse was named and never changed (deliberately or inadvertently). For the current spouse to be displaced, they normally have to sign off on their right to the proceeds -- very much the same as an irrevocable beneficiary in life insurance -- even when it comes to taking a loan against one's 401(k) or 403(b) plan assets.
Sometimes, in a divorce situation, the court may even order a physical division of the retirement plan assets on behalf of the departing spouse to guarantee his or her entitlement.
Posted: Sat Sep 11, 2010 12:59 pm Post Subject:
Sometimes, in a divorce situation, the court may even order a physical division of the retirement plan assets on behalf of the departing spouse to guarantee his or her entitlement.
It seemed to be step that the court takes to safeguard the interests of the departing spouse. I'm wondering if it's at all a hassle-free process.
Posted: Sun Sep 12, 2010 12:32 pm Post Subject:
step that the court takes to safeguard the interests of the departing spouse
In a "community property" state such as California, it is less about "safeguarding the interests" than it is a simple division of the property. Depending on the value of the retirement account compared to all "community" assets, a court is not bound to divide retirement plan/pension assets, but could award other assets as equivalent value.
It's mostly a function of the attorneys to work out a compromise and for the court to rubber stamp the order. When the parties cannot come to an "amicable" resolution, then the court has broader authority to order certain things be awarded to one party or the other.
Having a pension plan (a lifetime income situation) compared to the present value of a 401(k) or IRA account is what usually leads to a "division" of the retirement assets. The pension plan trustee will have to accommodate the court's order and determine separate pension amounts for the two former spouses.
Hassle-free? Not when attorneys are involved. And judges are attorneys, too. It's only hassle-free when the two departing spouses can agree on everything without the assistance of an attorney and then find one attorney to draw up the formal paperwork. That's known as an uncontested action. Sometimes even those are not entirely amicable.
Posted: Fri Apr 08, 2011 04:16 am Post Subject: will vs joint tenancy
Live in state of AZ. Husband owns property in Canada with his daughter as a joint tenant with rights of survivorship. If he draws up a will in AZ and states that he wants his wife to inherit the property upon his death, can that take place? FYI, to add the wife to the property would involve a capital gains tax to be paid by the husband.
Posted: Fri Apr 08, 2011 06:13 am Post Subject:
Well, I'm not aware of the property laws in AZ. But I don't see any problem with the wife inheriting the portion that her husband owns (after he passes away). Let's wait for the others to share their views regarding this.
Posted: Sat Apr 09, 2011 12:09 am Post Subject:
But I don't see any problem with the wife inheriting the portion that her husband owns (after he passes away)
Jeorge doesn't see any problems. Then again, jeorge probably did not see the words "Joint Tenants with Right of Survivorship" either.
JTWROS means exactly that . . . the surviving JOINT owner receives the FULL MEASURE of the deceased former joint owner's share in the property. A surviving spouse who is not on title as one of the joint owners DOES NOT receive the deceased spouse's share -- with or without a will in place.
To the best of my knowledge, the laws of Canada are not substantially different than US law on this. The joint owners' interests are entirely outside the estate/probate turmoil that can follow a death. Property interest transfers instantaneously (and, generally, irreversibly) at the moment of death.
If the OP is to inherit the husband's interest in the Canadian property, the OP needs to be on title. If that means a taxable event, so be it. There is no other way.
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