My father recently died at the age of 75, without a will. At that time, he was divorced from his fifth wife and had a fiancée. He leaves behind three children: myself, the eldest aged 57, from his first marriage, and a son and a daughter, aged 29 and 32, from his fifth marriage. He was very well off, being a part owner of a company – at least, a “minor” millionaire.
However, his fiancée only gave us some of his possessions and three cars at the time of his death. She did not give us any of his legal or financial papers. We're certain 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 has not provided any evidence.
We have forwarded his mail to my brother to try to find out his attorney, insurance company or any papers related to his personal business.
I have several questions:
1. How can we find out if he has life insurance or a will without any paper document?
2. How do we know about his checking accounts, savings accounts, and paperless 401(k)?
3. We believe he died intestate and that his assets should go through probate court; But my half-brother took control of the situation, including burning his body and sending it to him for burial. He gets along great with his sister, but since I'm 25 and since my first marriage we've never been close, and I feel like they're “collaborating” with their mother (his last ex-wife) to make a decision about him. Things are his property, and not telling me what's going on.
My other questions:
4. How do we reach the stage of subjecting his estate to probate and how is a third party appointed to supervise this? Can my brother legally take over? I want to make sure his assets are divided equally between the three of us, and I don't know how to achieve that when my stepbrother refuses to contact me and my stepsister keeps telling me 'he's taking care of it.'
5. Also, if he and my sister are listed as beneficiaries on any of their life insurance policies or 401(k) policies, do I have a legal right to any of them if I'm not listed?
Thank you in advance for your help.
The eldest son
See also: I want to disclose the “suspicious practices” of my former employer, but I signed a non-disclosure agreement. Can I break my NDA?
“All of his property, everything from his watch to his car to his house, must go through probate when an administrator is appointed by the surrogate’s court or the district court.”
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Dear eldest,
Your late father's fiancée has a lot to lose, which is why she's probably using this time to close the floodgates by blacking out information. All of his possessions, everything from his wristwatch to his car and house, must go through probate when an administrator is appointed by the surrogate's or district court. You must be able to apply to be the administrator of your father's estate. It's a lot of work, and it even includes filing his taxes.
That said, I can answer your last two questions (#4 and 5) first. No, you have no legal right to your father's life insurance policy or 401(k) plan, assuming they already exist and your siblings (or anyone else, for that matter) are listed as beneficiaries. If there are no beneficiaries listed, these accounts will become part of your father's total estate, and will be subject to probate along with his bank accounts, house, pension and all his other assets.
Your father's bank account, mediator, and attorney should be able to begin the fact-finding process. It is a good lesson for everyone to get their papers in order, and leave a copy in a safe deposit box and/or with a trusted attorney. Assuming your father died intestate – without a will – his fiancée is not a legal heir and, therefore, will leave nothing, unless she is a joint owner of his bank account or is listed as a beneficiary on his other accounts.
However, any eleventh-hour changes to your parent's listed beneficiaries could raise a red flag. Typically, a person must be of sound mind and not subject to coercion, restraint, fraud, or undue influence to sign a will, power of attorney, or other legal and financial documents. The person would need to understand what he was signing, and have testamentary capacity – that is, he would need to know what he was signing, why, and how much was at stake.
After someone is appointed by the court to speak on behalf of the estate, you can then determine the insurance payments through transactions on his bank account, and file a change of address for all of your father's mail, says Hubert Klein, a partner and forensic accountant at Eisner & As for your half-brother and sister, Klein says, “What authority did he have to speed up the process?” Was it [or she] Set executor or administrator? You have to ask.”
State law controls the probate process. “Many states have this information online about how the process works — who can file paperwork, who can be appointed as an estate representative, who can carry out transactions on behalf of the estate,” he says. “Hidden or undisclosed assets and accounts can be found, but someone must speak on behalf of the estate to ensure proper accounting of all assets of the estate, and documentation of liabilities before the court.”
The probate process is public, and is the legal equivalent of washing your dirty linens in the front yard; This won't leave much room for siblings, ex-wives or fiancées to muddy the waters. In addition to the administrator/executor, you will need a trust attorney and an 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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