QUESTION
Does a will take precedence over all?
Asked on Dec 20th, 2012 on Estate Planning - Oklahoma
More details to this question:
The lawyer holding original will does not respond to my calls and the joint checking account holder tells me she gets monies in account. However, I am the sole heir, to all monies, properties, assets etc. What do I do?
18 ANSWERS
Shadi Ala'i AlaiShaffer
Unfortunately, a Will does not control all assets or accounts.... You need to know what other legal documents existed but unfortunately if there was a financial account held jointly with someone else then since the account was held jointly the other holder does get the funds/monies in the account despite any Will or estate documents that exist.
Answered on Jan 04th, 2013 at 3:18 AM
Business Law Attorney serving Livonia, MI
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Gerald A. Bagazinski
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A joint owner takes over the will unless you can prove it was a convenience account, the other person was acting as a fiduciary, undue influence or duress.
Answered on Dec 30th, 2012 at 10:06 AM
Thomas Edward Gates
You are not the attorney's client, hence, he does not need to respond to your requests. You can file a complaint with the State Bar if you feel he is not performing his duty to you. Because the checking was a joint account with the deceased and your sister, she in deed get all the money in the account to herself. If you are to get the remainder estate, then the Executor should be working with you to honor (her legal requirement) the terms of the will.
Answered on Dec 28th, 2012 at 12:14 AM
Elder Law Attorney serving Hollister, CA
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Charles R. Perry
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You need to speak to a probate attorney as to what you should do. The survivors of the people named on the joint checking account have the right to all the monies in that account when another account holder passes away. This is true regardless of what a will might say. However, there should be no more money of the decedent going into that joint account after the date of death. That money properly belongs to the estate, and should be distributed to the heirs pursuant to the terms of the will. You may want to have a lawyer to write to the lawyer holding the will, to see if that will get you a response. If you have a copy of that will, then the copy can be entered into probate in many situations. Best of luck to you.
Answered on Dec 27th, 2012 at 9:09 PM
Probate Attorney serving St. Louis, MO
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Edward L. Armstrong, P.C.
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Has a probate estate been opened in the county were the decedent was domiciled at the time of his/her death? If there is no will the heirs at law would be the surviving spouse and surviving children or the children of a deceased child (who would divide their parent's share between them equally). If the lawyer will not allow you to see the will retain counsel and have him/her open an intestate estate to force the issue.
Answered on Dec 27th, 2012 at 1:01 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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You are mixing up terms. An "heir" is the person who would receive the "probate" assets, if there was no Will. This means the same thing as the "next of kin." The Will only controls assets that pass through probate. Assets that are in the name of the decedent alone, (no joint owners or beneficiary designations), pass through probate and under a Will. Assets that are jointly owned or have a beneficiary designated are not controlled by the Will and pass, outside of probate.
Answered on Dec 26th, 2012 at 1:21 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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As to the lawyer, file a complaint with the state bar of California for failing to respond to you re the original will. As to the joint account, the survivor survies to the account if held in joint tenancy, unless you can prove that method of holding the account was for the convenience of management for payment of bills of the deceased.
Answered on Dec 26th, 2012 at 12:48 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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A will has no effect on joint accounts there is a presumption that the joint account belongs to the surviving owner. You can sue the surviving owner if you can prove that such was not the intent of the deceased owner. People create joint ownership of property way too often, not understanding its effect on estate planning.
Answered on Dec 26th, 2012 at 12:01 PM
The will does not cover property that has its own beneficiary designations. If the account in question is a true joint account then it goes to the survivor. You should consult a probate attorney to review the facts and advise you.
Answered on Dec 26th, 2012 at 11:32 AM
Trust Attorney serving Cincinnati, OH
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Paul A. Nidich Attorney at Law
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Wills do not control the disposition of many things, most of them are contractual in nature. For example, Wills don't control beneficiaries of life insurance policies, annuities, or retirement accounts. Wills also don't control disposition of property, e.g., real estate or bank accounts that are joint and survivor ship. I would suggest going to the attorney's office, if he doesn't answer your telephone calls. You could also go to your county Probate Court with a certified copy of the death certificate and ask advice regarding the attorney. You probably should hire your own attorney which you may need to do, anyway. Good luck.
Answered on Dec 26th, 2012 at 11:06 AM
3 Awards
A joint account owner receives the account. You, as beneficiary of the Will are entitled to receive the probate assets. Probate assets include all non-joint accounts and all accounts without a designated beneficiary. If an account or asset is joint or has a named beneficiary it passes to that person not you. You should send a written certified request for a copy of the Will.
Answered on Dec 26th, 2012 at 10:44 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Maybe. It is possible that the money in the joint checking account was a gift in anticipation of death. However, if the checking account was only used for the decedent's debts and the other person was only on their for convenience, then she may not be entitled to the money. If you have a copy of the will, you may be able to file that in a formal probate proceeding. It might not hurt to go to the attorney's office and ask for the will.
Answered on Dec 26th, 2012 at 10:43 AM
1 Award
A will only controls certain assets. Other assets may be titled jointly, have beneficiary designations, or pass by operation of law. If you are a spouse, you have the right of election which can pull back certain non-testamentary assets back.
Answered on Dec 26th, 2012 at 10:14 AM
Alternative Dispute Resolution Attorney serving Baltimore, MD
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Whiteford, Taylor & Preston L.L.P.
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The joint account will pass to the surviving joint owner by operation of law, regardless of what the will says. The attorney in possession of the original will has an obligation under state law to forward the original will to the Register of Wills for the county in which the decedent resided.
Answered on Dec 26th, 2012 at 9:41 AM
They will only controls all sole assets of the deceased. Joint assets (with rights of survivorship) are given the the survivor.
Answered on Dec 26th, 2012 at 9:40 AM
A Will does take precedence over statutory intestate distribution provisions, however, it will not over any jointly held accounts unless the joint account is held as tenants in common (and not joint tenant with right of survivorship). If anyone is holding an original Will they have a duty under the law to produce it to the court. To get the distribution initiated you can file the probate with the court without the Will - indicate the original is in Attorney X's possession.
Answered on Dec 26th, 2012 at 9:39 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Get a new attorney and understand the a joint folder of a checking account receives the funds in the account regardless of the will when the other joint holder dies.
Answered on Dec 26th, 2012 at 9:38 AM
On Joint Checking accounts and beneficiary designations, the joint owner or beneficiary gets the asset, not the heir in the will. Those assets skip out of probate, and are governed by other laws.
Answered on Dec 26th, 2012 at 9:38 AM