San Antonio Express-News
February 25, 2003

Savings Bonds Survivorship

- and -

Option to Disclaim Share

copyright 2003, Paul Premack

According to the US Treasury, when any savings bond is held in two names it automatically becomes the property of the survivor when either party dies. When any savings bond has a named beneficiary (using POD "pay on death" designation) it is paid to that beneficiary. When a bond is held in a single name, that bond passes to the estate and is distributed under the terms of the Will.

Thus, the vital issue is how those bonds were titled. You say the savings bonds were "in his name" – which could mean they were titled jointly or were POD to him. In that case, they became his sole property upon her death regardless of what her Will said. You also say he sent the heirs checks for $10,000+. Perhaps that money was the part of her estate not in savings bonds, and was all he was required to distribute under the Will.

You can’t really know what he reported to the IRS since you are not privy to the information. I can tell you he was not required to file a federal estate tax return. However, Texas law did require him to file an inventory of estate assets with the probate court. You can get a copy by visiting that county clerk’s office. If he has not distributed the funds reported on the inventory, you can force distribution by filing a motion with the court. But you have no viable way to question the survivorship assets now that seven years have passed.

Dear Mr. Premack: My mother is in hospice care. I am to be Executor. My brother and I are the only heirs. The Will says "share and share alike" after debts and expenses. My brother wishes to convey his 1/2 to me since I have been caregiver for several years. Is a notarized statement from my brother stating he wishes his portion to go to me sufficient in Texas probate? – D.B.

There are three approaches to consider. First, since both her children have asked, your mother could re-write her Will leaving everything to you. Second, she could place all her assets into survivorship or POD to you. Both those options are unavailable if she is too ill to act.

If she cannot (or will not) use those options, then after she dies your brother could "disclaim" his share. This must be done in writing, within 9 months after her death, and must be filed with the court. There is some danger in disclaiming: his share passes to the person who would have received it if he had died prior to your mother. A disclaimer is advisable only if the Will clearly states that you receive his share.