Is there anything I can do to be included in my mom's estate?

Question

If someone dies and they have a will, but put one (and only one) of their children on the account as a joint owner (JTWROS), do the other children have anything they can do, or does the joint account ownership trump everything including the will?  Is there anything that the other children can do?

James Weiner · Answer

Unfortunately if she put her funds in an account as a JOROS (joint owner with right of survivorship) that supersedes the will unless it happened while the deceased was under undue influence  a long hard expensive fact intensive battle that is not usually worth the expense of the fight.

Jayne Sebby · Answer

The essence of joint ownership is that the surviving owner(s) automatically receive the interest of the deceased owner upon his or her death.  Since the transfer to the survivor(s) is automatic, the asset is usually not included in the will and cannot be distributed to the decedent's heirs.  Exceptions to this rule include when the decedent was mentally incapable of understanding what a joint tenancy account meant at the time he/she created it or the decedent was a vulnerable adult who was duped into creating the joint tenancy at the urging or pressure of another person who intended to take advantage of the situation for his or her own benefit.  Usually, a child who is signed on to an account merely to make sure the parent's bills are timely paid and the money spent reasonably does not fall into these exceptions.

Sabina Tomshinsky · Answer

Generally, the type of joint account you are referring to is not considered a probate asset and passes outside of probate. This means that the remaining owner of the account becomes the sole owner of the remaining funds.

Brian Haggerty · Answer

Joint ownership means the joint assets are not included in the probate estate, so the will does not affect them. You can sue your sibling under a "constructive trust" theory, that Mom didn't understand the effect of the transfer, and meant for her estate to go equally to the kids. It's a long row to hoe.

James Frederick · Answer

It depends on the facts. If the joint ownership was done for "convenience purposes only," and there is evidence to show that, then you have a decent chance. If there is nothing other than joint ownership, then you have a problem. There is a presumption that the intent was to have the joint owner receive the property. It is possible to overcome that presumption, but it is not easy to do so. A skilled attorney is a must.

Dara J. Goldsmith · Answer

The JTROS trumps the Will.  Speak with an attorney to address if you have any other viable options.  It may be possible to explore other options depending upon timing issues, your mother's capacity, etc.  This information is only intended to give general information in response to an inquiry.  It does not establish an attorney client relationship.

James E. Reed · Answer

A Will directs the distribution of those assets titled in the name of the deceased alone at the time of death. A joint account, by virtue of the title on the account, automatically goes to the surviving joint tenant and is not part of the estate distributed under the Will. The joint account could become part of the estate if it is proven that the surviving joint tenant exercised undue influence over the deceased in getting the account made joint, but undue influence is difficult to prove.

C. Hamrick · Answer

FOR WEST VIRGINIA ONLY: The answer in West Virginia is rather complicated, and depends on the circumstances surrounding the event when the one person was placed on the account. On its face, the remaining joint tenant is the owner, however, there are other reasons why that person may not be the full  owner. That may involve legal proceedings and you need to see an attorney.

Christine Socrates · Answer

The will only applies to the assets that are in the probate estate. However, that does not mean that the other children cannot file their own action to try to prove that assets that passed outside of probate should have been distributed a different way.  The joint account will pass automatically to the surviving joint owner but that account can be brought back into the estate if the other family members bring an action and prove that that was not the decedent's intent or there was some fraud, coercion or incapacity.

Christine James · Answer

The joint account becomes the property of the joint owner.  The only way to change that would to show fraud, lack of capacity or undue influence in naming the co-owner, and that is very hard to do.

Thomas Edward Gates · Answer

The question presented is actually two different issues.  When your mother included one sibling to e a joint tenant with right of survival, she made the choice that, upon her death, the assets (generally a checking account or property) would belong to the survivor.  The will addresses the remainder of her estate and how she wished it to be divided.  One cannot be included in the estate unless they are named in the will.  The executor has the responsibility to execute the wishes of your mother.

John Brennan · Answer

JTWROS accounts are generally not part of the probate estate, which are governed by the will.  See an attorney as there are arguments that can be made under certain circumstances but they are tough to win.

Bernard H. Greenberg · Answer

Generally, the joint ownership will trump the will. However, there are circumstances where this can be overcome. To determine your rights, visit with an attorney who specializes in estate matters.

Charles Perry · Answer

Unless you can prove some sot of mistake, fraud or duress, then there   is likely nothing you can do.  The fact that only once child was named on the account, but all were   named on the will, is not evidence of mistake.  Your mother may have   had her reasons for doing that, and if the record is silent on this   fact, the court will assume the documents reflect your mother's desires.  Yes, the joint ownership on the account trumps the will.

Randall Romei · Answer

There are some circumstances that can lead to a court finding that a joint account was created for convenience purposes and not with the intent of survivorship.  These are called convenience accounts that allow a caregiver/child to pay bills, etc. for the elderly person.

Thomas SanFilippo · Answer

I would have to see the will in question to give you a definite answer, also I would need to know more about the accounts.  But I think as a biological heir you have options.

Erven Nelson · Answer

Generally speaking, a specific designation on a specific account would trump a general provision in a will.  In Nevada, if the JTWROS designation was done properly, the account would not become part of the deceased?s estate and would not be affected by the will.  The will would apply to all assets in the estate, but not to assets which passed outside the estate (like the account).  You might have an argument, however, if the will specifically mentioned the account as being part of the estate subject to the distribution set forth in the will.   To give you a better answer, I would need to review both the will (with schedules and exhibits) and the designation on the account.

Victor Waid · Answer

Joint tenancy generally trumps all other documents and the survivor takes all; does your mother understand this aspect of the joint tenancy account?, Is fraud involved, ie the joint tenant has unduly influenced your mother? Otherwise you are out of luck.

Kimberly French · Answer

If the will is available, you can submit the will to probate in the county where your mother died. The named executor will then be responsible for making sure her property is distributed as she intended. It is unclear what kind of assets your mother left behind, but a valid will needs to be submitted to probate as soon as possible to make sure you and your siblings receive the portion of her estate that she designated in the will.

Edwin K. Niles · Answer

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Is there anything I can do to be included in my mom's estate?

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