Updated: Feb 11, 2021
This column first appeared in the San Antonio Express News and other Hearst Newspapers on October 19, 2020.
Dear Mr. Premack: Mom and Dad worked hard and saved almost a million dollars. In 1999 Dad placed all of their savings into Mom’s and the two sons’ names with the local bank, removing his own name from all the accounts. Mom and us kids were present and were required to sign bank paperwork. Dad was diagnosed with dementia in 2006, then Mom died in 2007. My brother did not tell me about Dad’s diagnosis. Sometime either before or after Mom died, Dad changed all the bank accounts to Dad and just my brother. I think Dad was either scared or pressured into doing this. Questions: if all of us had to sign all the bank paperwork in 1999, how did the bank take me off the accounts without my authorization? Were any of these transactions a crime? Many thanks for your columns. – DW
Someone who owns an asset has a great deal of control over the disposition of that asset, within legal limits. Assets of a married couple, in Texas and in eight other states, are classified as community property (owned one-half by each spouse) when those assets came from either spouse’s earnings. So, in 1999 your parents’ million dollars was owned equally by both of them.
From your description, when they changed the bank accounts, they changed who could access the funds but did not change who owned the funds. To legally change ownership, they would have had to work with their lawyer to partition the funds into separate property, with your father gifting his half to your mother. They did not do that; they just changed the agreement with the bank over who would have access.
Your mother died in 2007. Missing from your list of facts is whether she had a Will or other estate plan in place. Assuming she did not have a Will there are two possible outcomes. First, if the bank account agreement said the accounts were held with survivorship rights, her half would have become the property of the other accountholders (you and your brother). But your father would have still owned his half. Second, if the bank account agreement did not create survivorship rights, your father would have become sole owner of the entire balance as her heir at law. Once he proved to the bank he was sole heir, the bank would have allowed access to the accounts.
You report that your father, despite his dementia diagnosis a year prior to your mother’s death, changed all the accounts to him and your brother. Another fact missing from your list is the nature and depth of his dementia. Under Texas law, a doctor’s diagnosis does not strip a person of their legal rights. Your father had the right to manage his own funds and make his own decisions about his heirs. The only way he could be deprived of that right would be a court ruling that he is legally incapacitated along with appointment of a Guardian.
So, the money belonged to you father, and its disposition was under your father’s control. Banks have legal ways to change accounts without getting signatures from secondary accountholders, like allowing the CDs to mature then reinvesting the money into new CDs with different signers. Doing so would have removed you without your signature or involvement.
Another missing fact is your dad’s current status. If he is alive and incapacitated, he still owns the money. You might consider starting a Guardianship so that everything has to be accounted for before a Judge. If he has died and (a) if the accounts were set up with right of survivorship to your brother only, the bank would have treated your brother as sole owner, but (b) if the accounts did not have survivorship rights, the funds would have passed according to your father’s Will or, if he was intestate, to all of the children equally.
The only potential wrongdoing is if your brother unduly influenced your father. You may have a claim against your brother for half of the funds but would have to prove malfeasance in court. Also, your claim must be timely asserted before being barred by the statute of limitations.
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.