What todo if my brother has passed and on his insurance and death benefits he listed his ex-wife as beneficiary?

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What todo if my brother has passed and on his insurance and death benefits he listed his ex-wife as beneficiary?

Our understanding is that the ex wife is not the legal beneficiary. He has 1 child who is 20 but he is estranged from-they haven’t talked in 15 years. The other child is 13. Who is the legal beneficiary? I am his sister and so far have been the one taking care of the estate. Do I need to go to probrate court?

Asked on August 3, 2012 under Estate Planning, Texas

Answers:

Brad Micklin / The Micklin Law Group

Answered 8 years ago | Contributor

This is a difficult question to answer because insurance benefits typically pass outside an estate and are considered nonprobate property. In other words, the person who is the named beneficiary is usually the one who receives it regardless of what the law says about inheritance.

In some cases, you may be able file an application in the probate court asking to set aside the beneficiary designation indicating that is contrary to the decedent's intent and that it may have been revoked by operation of law by the divorce. Additionally, the decident may have had some mental or physical impairment that prevented him/he from changing the beneficiary designation following the divorce.

However, the probate court may not have jurisdiction over the insurance benefits as they are non-probate property.

You should speak with an experienced attorney who is familiar with these areas of law.

Good luck.

Brad M. Micklin, Esq.

187 Washington Ave., Suite 2F

Nutley, NJ 07110

973-562-0100

[email protected] 

This information is based on New Jersey law and upon the limited facts you presented. My advice may be different if I find that the facts presented are different.  Additionally, this answer does not contain any confidential information nor does it create any attorney/client relationship. 

Brad Micklin / The Micklin Law Group

Answered 8 years ago | Contributor

This is a difficult question to answer because insurance benefits typically pass outside an estate and are considered nonprobate property. In other words, the person who is the named beneficiary is usually the one who receives it regardless of what the law says about inheritance.

In some cases, you may be able file an application in the probate court asking to set aside the beneficiary designation indicating that is contrary to the decedent's intent and that it may have been revoked by operation of law by the divorce. Additionally, the decident may have had some mental or physical impairment that prevented him/he from changing the beneficiary designation following the divorce.

However, the probate court may not have jurisdiction over the insurance benefits as they are non-probate property.

You should speak with an experienced attorney who is familiar with these areas of law.

Good luck.

Brad M. Micklin, Esq.

187 Washington Ave., Suite 2F

Nutley, NJ 07110

973-562-0100

[email protected] 

This information is based on New Jersey law and upon the limited facts you presented. My advice may be different if I find that the facts presented are different.  Additionally, this answer does not contain any confidential information nor does it create any attorney/client relationship. 


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