beneficiary changed illegally

UPDATED: Sep 30, 2022

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beneficiary changed illegally

My spouse was named as the sole beneficiary on two 401k accounts that belonged to his brother who died in September 2015 after being in a coma for several days. About 1 or 2 days before he died, the oldest brother took it upon himself to log on to the dying brothers accounts remove my spouse as the beneficiary and change it to his name only. This was done without the dying brother’s consent since he was in a coma in the hospital didn’t have access to a computer or the mental capacity to authorize a change. One of the company’s has already transferred the funds to the older brother. The other company will not release the funds to either one until they work it out or court decides. Wouldn’t my brother in law be guilty of fraud by making the changes? The deceased brother did not leave a will or have any children. Would my spouse be entitled to the money that was given to the older brother, if we can prove it was changed illegally?

Asked on March 17, 2016 under Estate Planning, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If the brother pretended to be someone else, made changes without consent, and then took money's that did not belong to him... then he is potentially criminally liable for for fraud, theft, and identity theft.  If the amounts are significant, then he could be charged with felonies.  If it can be proven that the first transaction was fraudulent, then your spouse would be entitled to whatever of the funds that could be recovered.  If convicted, his older brother could also be required to pay him restitution.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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