Kelly Moore: Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was:
• owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or
• a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment.
This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary.
Here are kinds of assets that don’t need to go through probate:
• Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named
• Life insurance proceeds (unless the estate is named as beneficiary, which is rare)
• Property held in a living trust
• Funds in a payable-on-death (POD) bank account
• Securities registered in transfer-on-death (TOD) form
• U.S. savings bonds registered in payable-on-death form
• Co-owned U.S. savings bonds
• Real estate subject to a valid transfer-on-death deed (allowed only in some states)
• Pension plan distributions
• Wages, salary, or commissions (up to a certain amount) due the deceased person
• Property held in joint tenancy with right of survivorship
• Property owned as tenants by the entirety with a spouse (not all states have this form of ownership)
• Property held in community property with right of survivorship (allowed only in some community property states)
• Cars or boats registered in transfer-on-death form (allowed only in some states)
• Vehicles that go to immediate family members under state law
• Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (801) 676-5506. We want to help you.