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

Answers:

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

Answered 4 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.


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