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Ask the Expert: What are the options when an heir to an IRA is missing?

My late father's will left inherited IRAs for each of his children. He specifically left one son out of his will, stating that he'd already received his inheritance, but he didn't change the IRA bearing that brother's name. Nobody has heard from this brother in years and nobody can locate him. The IRA remains untouched. I think it should be given to his ex-wife, my father's former daughter-in-law, who's also a beneficiary of my father's will. Can this be accomplished?

To change the disposition of your brother's inherited IRA, you'd first have to convince a court that he's dead. That's not easy, says Eric Kramer, an Island Park estate lawyer. The court generally must be persuaded that despite diligent search, he hasn't been seen, heard from or heard of for three continuous years, and that nothing explains his absence.

But even if you succeed, his ex-wife would have no legal claim on it.

Your father listed each child by name on his IRA beneficiary form, which supersedes his will. The IRA custodian divides the account, distributing it as inherited IRAs to the named beneficiaries. What happens if one beneficiary is dead? Kramer says that depends on the IRA custodial agreement and when the death occurred.

If your brother is legally presumed to have predeceased your father, a typical custodial agreement would call for dividing his share of your father's IRA between the surviving named beneficiaries. If he's presumed to have died after your father, says Kramer, your brother's inherited IRA would be part of your brother's estate and governed by his own will. If your brother left no will, the law would divide his estate between his widow and children.

The bottom line

You can't alter a decedent's IRA beneficiary designations even if you believe he'd approve the change.

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