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In a clash between your Will and your Bank, who is going to win?

Dear Mr. Premack: I am thinking about making my Will. I know that when I die, I want some of my money to go to my two daughters, and some to my stepson (but not the same amount as my daughters). I have several CDs, a money market account and checking accounts. I am also concerned about getting older, and asked the bank if I could put my oldest daughter on my accounts so she can pay my bills if I cannot. When she signed the bank’s paperwork, I notice that all the papers said “with right of survivorship.” The banker said they do all of their accounts that way, not to worry about it. Is that the way it should be for me? Thank you. – W.B.

Texas law provides several ways for ownership of a bank account to change when an accountholder dies. The most traditional approach is to designate in your Will how you desire the accounts to be divided. But Texas law also provides that account ownership can be changed to other accountholder(s) automatically via right of survivorship.

Right of survivorship is a contractual agreement between at least three parties: the primary accountholder (you), one or more secondary accountholders (like your daughter), and the depository institution (the bank). The contract must be signed by all accountholders to be valid.

Banks love survivorship rights and their cousin, “pay on death” arrangements. However, that affection is based on the bank’s ease and best interests. When one accountholder dies, these arrangements allow the bank to turn the funds over to the other accountholder or the beneficiary named in the contract, and to be relieved of further liability. They know exactly what to do, can do it quickly, and once it is done they have no further legal liability.

But what is best for the bank is not necessarily what is best for you. For instance, you want some of your money to pass to your two daughters and a lesser amount to your stepson. If the bank automatically assigns right of survivorship on your accounts, then all the funds in those accounts become the property of the sole daughter who is listed on those accounts. She and she alone becomes owner of those funds. They are no longer divided under the terms of your Will.

That is the vital point. In a conflict between your Will and the contract with the bank, your Will loses. The bank contract overrides your Will. The funds are distributed in the way that is convenient for the bank, even if your Will says they should be distributed in a different pattern.

Texas law does not require the bank to “do all their accounts that way” (with survivorship or with a beneficiary designation). It is an option that is right for some people and desperately wrong for others. The bank should never force it on a depositor; they should be facilitating the depositor’s best interests, not focusing on their own ease.

It is true that for many people, accounts with right of survivorship or beneficiary designations are a very good choice. For instance, a married couple whose assets are all community property, and who want all the assets to pass to the surviving spouse, can benefit greatly. When one of them dies, the accounts belong to the survivor. There is no need to probate the Will to access those accounts. The survivor need only present the death certificate to the bank to be treated as the legal owner of the accounts.

But there are other situations when using these arrangements is a bad choice. What if that married couple has an estate large enough to be exposed to federal estate taxes? For them, survivorship rights that contradict their Wills can cause them to lose a major tax break. They may end up owing a huge tax bill that could have otherwise been avoided.

Your situation is another example: you want the funds divided in a very specific manner. The bank wants to give them all to your oldest daughter. Whose desire should be more important? Yours, of course. You should tell the bank that using right of survivorship would contravene your Will and that you do not want it.

Instead, you can ask the bank for a “convenience account” (in which your daughter can access the funds, but has no ownership and no survivorship rights) or a joint account without survivorship rights. You can also have your lawyer write a durable power of attorney for you, and then add your daughter to your account as “agent”. The bank is fully empowered under Texas law to offer those arrangements, and if they refuse then you should close your accounts and go to a local bank that understands and follows Texas law.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, July 15, 2011


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