Updated: Oct 12, 2021
This column first appeared in the San Antonio Express News and other Hearst Newspapers on July 17, 2020.
Dear Mr. Premack: I want am a single senior with three adult children, all of whom get along well. My goal is to set up an estate plan where they divide all of my assets equally when I die. But I ran into a glitch with my bank. I told them I want to list my oldest son on my checking account so he can pay my bills if I become ill, and when I looked at the signature card a few months later it list him as joint tenant with right of survivorship. I feel fairly confident that the kids will still divide the assets equally since that is what my Will requires, but should also bring this to the attention of the bank? – G.R.
Banks like to have a clear picture of what to do when a depositor dies, and they know that their account agreement does, in fact under Texas law, beat the terms of the Will. That’s right, your Will takes a back-seat to the terms of your deposit agreement with the bank. Consequently, you need to be sure that your intention is honored by the bank instead of being contradicted by the bank for its own convenience.
Under Texas law, two or more people who hold an interest in property jointly may agree in writing that the interest of an owner who dies goes to the surviving joint owners. However, Texas does not allow the mere fact that property is held in joint ownership to imply existence of survivorship rights. Creating of a right of survivorship must be explicit and must use the correct legal wording, whether we are dealing with an unmarried person or with a married couple’s community property.
For example, the abbreviation JT TEN implies a right of survivorship in most states. So much so, that in 2009 the Texas Supreme Court (in Holmes v Beatty) said that it implied a right of survivorship for a married couple’s Texas community property. That decision reversed many years of established law in Texas, and the legislature did not desire its statutes to be interpreted to imply survivorship. So, two years later, the legislature modified Texas law to supersede the Holmes decision.
In Texas, by law, JT TEN and similar language does not allow the inference of a survivorship right. The account agreement must be explicit and clear. Words like “joint tenants with right of survivorship” are required so that the existence of the survivorship right is express, not implied.
Sadly, financial institutions are not known for clear explanations of the legal impact of their account contracts. Banks like certainty because certainty tends to reduce liability. Hence, banks like rights of survivorship and may include them on an account signature card without fully explaining the impact to the account holder.
On the positive side, right of survivorship is an extremely useful and cost-effective technique for avoiding probate. However, it must be used properly. It must be coordinated with your Will and overall intent for the distribution of your assets. When the bank account card disagrees with your Will, the account card dominates. If you want your assets to go equally to your children but the account cards provide funds to only one of them, your Will and intentions have been countermanded. You must let the bank know that they overstepped their bounds.
Confer with your estate planning attorney to be sure that all of your accounts, life insurance, IRAs, annuities, etc., have the correct beneficiary designations which are in tune with your intentions and are in tune with your existing Will or other estate planning tools like a trust.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.