Fort Wayne, IN asked in Probate for Indiana

Q: What can be done when a father takes his daughter’s inheritance?

My granddaughter was left 75% of her paternal grandmother’s 401k for college. This was specified in a hand written will in California. The will was witnessed by 2 people.

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1 Lawyer Answer
Nina Whitehurst
Nina Whitehurst
  • Probate Lawyer
  • Crossville, TN

A: This is an example of do-it-yourself estate planning gone wrong. Grandmother should have had her estate plan prepared by an attorney, and clearly she did not. You see, the problem is that the distribution of a 401k at the plan participant's death is governed by beneficiary designation, not by will. The will might have worked had your grandmother named her estate as the 401k death beneficiary, but apparently she did not. Even if she had done that, it would have been poor estate planning because it would have triggered acceleration of taxation.

It sounds like grandma's will said one thing and her 401k beneficiary said something different (naming her son, apparently). The 401k beneficiary designation controls.

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