My husband died 07/09/2012. He had a will. The will was not probated through court as the affidavit option was utilized as permitted by Colorado Probate options. He was employed and enrolled in the 401(a) Optional Retirement Plan, carried by TIAA-CREF. He failed to enter any beneficiary when he filled out his paperwork for this retirement account. I have tried to claim these funds, but was told because he had no named beneficiary the money must go to the personal representative of the estate. There is no personal representative, as the will never had to be probated through court. They keep insisting, it's a vicious circle. What does CO law state is the proper distribution of these funds when there is no listed beneficiary and no personal representative? Thank you so much.
2 Answers from Attorneys
There are two issues to be answered. First, the distribution of the estate will be determined by the intestate statute because your husband had no will. As the wife, you will get a lump sum plus at least one-half of the balance. You will get more depending upon whether you and your husband had children and whether he had children from a previous marriage. I would have to know the facts relating to his children to give you a definite percentage of the estate that you will receive.
The second issue is whether you can collect the money using an affidavit or whether you need a court order naming you as the personal representative. That can only be answered after I know the size of the estate. If you need to become the personal representative, that can be done by filing an application with the court even though there is no will. You can get that application by going to the Colorado Supreme Court website where there are forms for probate proceedings or talking to a probate attorney. Best wishes.
If TIAA-CREF will not allow the account to be closed using the Affidavit of Collection (it's always worth a try) then you will need to file an Application with the local Probate Court to open a probate proceeding.
This will provide you with a Court Order appointing you as the PR and your Letters which you can then use to close the account.