Q: My husband died. I need to live on money in 401k. What is considered his estate?
Selling house still owed to bank. Are my proceeds from that sale considered to be his estate?
A: Check with the custodian of the 401K account to find out if he designated you as the beneficiary. If so, it is not part of his estate to pass through probate. Also, check the deed to your house to find out if you have survivorship rights or a transfer on death designation. If not, then the house and any sale proceeds would be part of his estate. Use the Find a Lawyer tab to retain a local probate attorney who can review these things and advise you.
A: More facts are needed to answer your question. Is the house worth more than the mortgage? Did he own the house, did both of you own the house, and if both, does the deed say "joint with rights of survivorship"? Does the deed have a TOD affidavit? Did you sign on the mortgage? You will also need to know if the 401K can be rolled into an IRA for you. Each of these things is very important, and I would advise you not to try to figure it out on your own. It may cost you $200 or $300 to have an expert probate lawyer look over your documents and make a call with you to the 401K Administrator. This is the only way you can be confident of your rights and options. It is possible you are on the hook for the full mortgage balance, or not, and it is possible your IRA is exempt from any claim by any creditor. Also, if he had any credit card debt, a lawyer who knows what he or she is doing may be able to help you avoid paying those. I strongly encourage you to meet with an EXPERT probate lawyer immediately before you make a mistake that can't be undone.
A: As his spouse, his 401(k) should pass directly to you as the beneficiary. Federal law requires a spouse to be the beneficiary of their husband or wife's 401(k), unless you signed a waiver. If you owned the house as joint tenants with rights of survivorship, the house will automatically transfer to you and you can do as you see fit. If the house was either solely in your husband's name or in joint names without survivorship, you will need to open an estate in your local probate court to sell the house.
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