Is there something we can put in place via the will or bank that will require us to be present before money is withdrawn from our mother’s accounts?

Question

My sister is on a joint bank account with our mother to help her with paying bills etc. The problem is that in the event of our mother’s death, she has claimed she is going to "freeze" all of our mother’s accounts and no one is getting in them but her. I am a co-executor on our mothers will. Her will was wrote and notarized about 2 years ago. The banking issue has become a concern because of things our sister has said and the large amount of credit card debt she is in. We are all very concerned she will take money that does not belong to her and we will not be able to stop her since her name is also on our mothers accounts.

Christine Socrates · Answer

If she is on your mother's account jointly, she will have full access to the accounts before and after your mother's death.  If there is a concern, your mother needs to take her off the accounts.  You may want to get a guardianship of her estate so that it is properly handled and the court can oversee or appoint a power of attorney that is trustworthy.

Edward Armstrong · Answer

If your sister is a "joint owner" with your mother, that is if the account is joint tenants with right of survivorship, that account will NOT be part of her probate estate and not subject to your management as a co-executor (actually, the term now used is "personal representative").

James Frederick · Answer

Your problem is that with a joint account, upon your mother's death, the money WILL belong to your sister. She will be the owner of the account and there is nothing you can do about that. You can have your mother withdraw all the money from this account, if she has capacity. If she does, you need to be careful to set things up so you will not have this issue again in the future. If your mother does not have capacity, you are stuck unless you become her conservator.

Frances Headley · Answer

You may need to seek to have your sister removed from the account via a court action. You should consult an elder law attorney about a conservatorship as well as the local agency in charge of elder financial abuse.

Ernest Kim · Answer

This is a situation that requires your mother to seek legal advice to have a proper estate plan in place as soon as possible. There are ways other than titling the bank account jointly with your sister, that still allow your sister to have her access to bank funds to pay your mother's bills, or limit her access to funds. For example, having one account with your sister as a signer on checks, that has a small balance transferred into it each month to cover bills, and the rest of the funds held in another account that is part of her living trust controlled by a Trustee who is reliable, etc. Part of an estate planning attorney's advice to your mother will consist of instructions regarding proper titling of assets such as accounts, so that they will be managed by the most qualified person (of her choosing) in the event of her death, and will pass to those she has chosen. In the majority of cases we have seen, jointly titled accounts are claimed by the surviving joint tenant upon one joint tenant's death, because joint tenant titling automatically has a "survivorship" feature- the survivors get the account. You sister could claim that by putting her on as a joint tenant to the account, your mother intended for her to have the whole account upon her passing. Then you and your other siblings would be forced to bring a court action to try to recover those funds and it will be extremely costly and ugly. These issues need to be cleared up ahead of time by your mother while she is still able to let her wishes be known. Those wishes need to be documented correctly, and consistently, with the help of an estate planning specialist.

Dara J. Goldsmith · Answer

If the account is a joint tenancy then she is correct. It will all be hers. Your mother may be better off changing her account to merely making the daughter a signor but not a joint owner.  Jointly owned assets do not go through probate. Thus as Co-Executor or Executor you will not have access or a right to obtain those assets for the estate. The jointly owned assets pass by operation of law to the surviving joint tenant[s].

Brian Haggerty · Answer

I hope there is something that your mother owns only in her own name, not jointly with anybody. That way, you will be able to open probate and submit the will to the court. Then as co-personal representative, you can demand that your sister make the joint account a part of the probate estate and bring it within the accounts that will be required for the court proceeding. Start documenting the amount in the account now, and the source of funds that have gone into the account, so that you can show it is only your mother's money. People should never use this joint account stunt in place of a proper power of attorney.

Thomas Phipps · Answer

As long as it is a joint account with your mother and your sister, your sister is entitled to withdraw funds. If your mother dies, your sister will get to keep the money in the account.

Christine James · Answer

Your concerns are valid. If her name is jointly on the account with your mother, it will be her money to do with what she wants. Your mother is the only one who can change this or cause a different outcome. If she has legal capacity, she can do a codicil (amendment) to her will specifically stating that account is titled in her and your sister's name for convenience only and that her intent is that the money be split equally among her children. If you sister runs off with the money, it can at that point and under those circumstances be charged against her share of your mother's estate. That is really the best you can do.

Gerald Bagazinski · Answer

Go to court and set up a conservatorship.

Thomas Edward Gates · Answer

Because your sister is a joint tenant on your mother's bank account, the money left after your mother's death is all her and is not subject to probate.  Because your are Co-Executor of the estate, it will take both of you to agree on any decision concerning the estate's probate.

Victor Waid · Answer

Consult with a probate attorney, since you are an executor of your mother's will, who can advise you as to how to give the bank notice, your mother's accounts will be subject to a probate proceeding, and to not allow any withdrawals after your mother's death.

Jayne Sebby · Answer

If your sister's name is on your mother's bank account, she may have rights to the funds in the account after your mother's death.  If this was not your mother's intention, your sister's name should be taken off of the account.  If your mother is capable, she can give your sister power of attorney for her financial matters and limit that power to bill paying and other necessary matters.  Powers of attorney end at the time of the grantor's death and your mother's bank account would become part of her estate.  If she is not legally capable of executing a POA document, you or another sibling can petition a court to assign someone other than your sister the position of conservator over your mother's finances.

Maura Curran · Answer

If your sister is a co-tenant on the bank account, then your sister can do whatever she wants with the money - now and after  your mother's death.  People think they are doing the right thing by naming someone on a bank account.  Many times this is good and works, but many times it back fires and the person named on the bank account takes all the money - even during the original owner's life.  Legally though, after the death of one cotenant, if not properly set up, the entire account goes free and clear to the other named party and it will avoid probate.  If your mother has full capacity and knows what is happening, now is the time to remove the daughter and have another plan in place.  If she is incapacitated, you need to go to the probate court and get a guardian named.

Richard Keyes · Answer

In Missouri, upon your mother's death, your sister gets all the money in the joint account and does not need to divide with her siblings.  Have your mother close the account by taking all the money out of the account.  Have her open a new account with just her name on it but have the money payable on death to all her children.  Have your mother execute a durable power of attorney for financial purposes so that if your mother cannot sign the checks, her attorney in fact under the power of attorney can sign checks on her behalf.  By having the new account payable on death to the children, the account avoids probate.

Jeffrey Gottlieb · Answer

Yes, this can be a huge problem. Joint tenancy accounts generally pass outside of the will, directly to the surviving joint tenant. Your mother would need to change the account title before she dies. There are several alternatives. She could put in her sole name. She could make it pay on death. She could put it in a trust. If she wants to giver your sister access to pay bills she can make a power of attorney or use a trust. Or she could create a statutory convenience account.  As you can see there are a lot of options and there are others. Your mother should contact an estate planning attorney. Estate planning is more than just writing a will. Proper asset titling is critical.

James Maguire · Answer

If you are named as a co-executor in your mother's will, you will have   equal authority with your sister over the assets after her death. Your sister   cannot take any action regarding the accounts without your consent.   If your sister is mismanaging your mother's accounts, you can force her to   account for these funds in your capacity as co-executor.

Kathleen Delacy · Answer

If your mother has a power of attorney naming you, you can take your sister's name off account so it is only in your mother's name and as agent for mother you or she can still write checks to pay her bills. You as co-executor has equal control over assets at your mother's death.

Mark T. Peters · Answer

So, in order to protect everybody, your mother should take sis off the accounts and then give sis or somebody else a durable power of attorney to pay bills, etc.  Then, when mom dies, the POA ends and someone will have to open up a probate estate with the court to make sure all of mom's last bills are paid and the rest of the estate is distributed as it says in the will.

Maxwell Livingston · Answer

In theory, you could amend the will to explicitly over-ride the existing POD with the bank account. And, you could present that to the banking institution to have in advance - so there is no error. In that will it could clearly state that even though she's a beneficiary, she only has a 1/3 interest (or whatever else it may be) with respect to the money in the bank.

James E. Reed · Answer

Because your sister's name is on the account, she will likely own the account automatically upon your mother's death.  The account will not be part of the estate.  The account will belong to your sister to do with as she pleases.

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Is there something we can put in place via the will or bank that will require us to be present before money is withdrawn from our mother’s accounts?

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