Dear Mr. Premack: My mother had me as a signer on her checking account. When she died suddenly at age 78 without a Will, the bank told me that I cannot use her account to tie up her unfinished business (she has some checks to deposit and some bills she would want me to pay). The bank says it was a "convenience" account. Should the bank be giving me access, and what else can I do to finish mom’s business? JA

When a person dies, the assets are going to pass to someone. The vital issues are: who will receive the assets and what hoops must they jump through to get them? Each of us has the opportunity to answer those questions for ourselves, or to leave the details hanging for our survivors.

Assets pass either by non-testamentary succession, by Will, or by intestate succession. Examples of non-testamentary succession include a bank account with right of survivorship or a life insurance policy with a designated beneficiary. Your mother, by placing your name onto her bank account, may have thought that the account would pass by non-testamentary succession, but she was wrong.

Her checking account was, as you note, a "convenience account". The Texas probate code says that on the death of the account creator (your mother) the convenience signer (you) "shall have no right of survivorship" and that "ownership of the account remains in the estate" of the account creator. In other words, a convenience account must pass according to the Will or to intestate succession.

Your mother died suddenly… but she was 78 so she did have some advance warning. She should have taken the time to visit with an attorney to make a Will. The cost would have been minor compared to the potential costs (in time and money) that you will be paying to receive her account. Scolding her in the newspaper won’t fix the problem, but everyone who is reading this should sit up and take notice: you need a proper, valid and enforceable Will. Do it now, because none of us knows what tomorrow will bring.

Should the bank be giving you access to her account? No. The bank is liable to the persons who establish their legal right to receive the funds. State law says that they could have paid the money out to you if they did not have notice of your mother’s death. Or they can pay the money out to the court appointed representative of her estate.

What can you do now to finish your mother’s business? If she had made a Will you would be offering it for probate then having the Executor named in the Will get hold of the funds. Without a Will, you have two choices:

First, if the total estate is less than $50,000 in value you can have a lawyer help you with a "small estate affidavit and order". This allows the local probate court to assess the identity of the intestate heirs and to order that the estate funds be release to those heirs.

Second, if the estate is larger than $50,000 you can go to court for a determination of heirship and administration of the estate. This process will be much slower and more expensive than the small estate affidavit and order.

Either way, you have to share the account balance (after the debts are paid) with all her intestate heirs. State law gives various categories of people who can inherit from her in the absence of a Will. Since families take many different forms (multiple marriages can make a family very complicated) applying the state law can be very complex.

Don’t let this happen to your family: be sure you have an up-to-date Will drawn by a qualified estate planning or elder law attorney.