[WSBAPT] Small Estate w/ Minor and 401(k)

Tue May 4 19:32:39 PDT 2021

Here are some questions to consider:

  1.  Did the decedent have a Will? Did it leave the property to the spouse? If so, then no need to analyze community vs separate property, issues of minor child, etc.
  2.  Were they in the process of divorce? See Estate of Petelle<https://advance.lexis.com/documentpage/?pdmfid=1000516&crid=32c9c72e-8fd5-4343-aab0-cb27266c85f8&config=00JABhZjY0ZmI3Ny04MzkwLTRlMzAtYjllNC03MzdlOTgyYTY2MDEKAFBvZENhdGFsb2eA00v3ycmKG7ve38pfdpvF&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5YWW-MVM1-FGRY-B278-00008-00&pdcontentcomponentid=506039&pdteaserkey=sr0&pditab=allpods&ecomp=L5w_kkk&earg=sr0&prid=d5f43801-3411-4ab3-9b5f-ec87216e4c3f>, 195 Wn.2d 661, 462 P.3d 848 (2020). The court held that a signed property settlement contract was valid despite the Decree of Dissolution not being entered.
  3.  Was it all community property? If there was money in a separate account that was pre-marriage or inherited, then it should be treated differently.
Practically speaking, I think this is going to depend on whether the 401(k) Administrator will accept the Small Estate Affidavit. I have tried several times, and all of the major brokerages refuse to accept the Small Estate Affidavit. So you are probably going to need to probate to access those accounts.
Best,
Nick

Nicholas Pleasants
Owner

[(Logo) Pleasants Law Firm]<http://www.pleasantslaw.com/>

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From: <wsbapt-bounces at lists.wsbarppt.com> on behalf of "msafren at jennylinglaw.com" <msafren at jennylinglaw.com>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Date: Tuesday, May 4, 2021 at 5:35 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Small Estate w/ Minor and 401(k)

Hello Colleagues,

I was recently approached by a potential client whose spouse has recently passed away.  The two were separated but not legally divorced and have a minor child together.  The decedent had about $100,000 in assets consisting of bank accounts and 401(K), and a vehicle.  There was no beneficiary designation on any of the accounts and no real property was owned.

Given the relatively small size of the estate and the fact that the estate property is presumed to be community property, I was thinking to advise them to use the Small Estates process, however I had two concerns 1) attempting to access the funds in a 401(K) without letters testamentary even though the RCW 11.62.010 allows such property to be claimed and 2) to the extent that any property is not community property, the minor child’s ability to receive the notice and/or agree to allow the “successor” surviving spouse to claim on their behalf.

If anyone has guided or helped a client through such a process, I’d be certainly grateful for your insights and thoughts.

Thank you in advance.

Warmest regards,

Michael S. Safren, Esq.
Attorney at Law

14900 Interurban Ave. S., Ste. 280 | Seattle, WA 98168
11900 NE 1st St., Bldg. G - Ste. 300 |  Bellevue, WA 98005
P: (206) 859-5098 | E: msafren at jennylinglaw.com<mailto:msafren at jennylinglaw.com>
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