QUESTION

Will I be required to probate money in my father's bank if he and I were both on the account?

Asked on Jan 07th, 2013 on Wills and Probate - Georgia
More details to this question:
My father died without a will in the State of Georgia. He opened a joint account with he and I on the account.
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1 ANSWER

Personal Injury Attorney serving Fayetteville, GA at Wade Law Office
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Okay, it looks like this adds information to your other question. If your father and you were both listed on the account, then whether or not the account is part of your father's probate estate will depend on a few variables. The default rule in Georgia is that a joint account is held by the joint owners as "joint tenants with rights of survivorship." That means that a joint account generally becomes the property of the surviving owner(s) automatically upon the death of an owner. No part of the account is then included in the deceased owner's probate estate. However, two other situations can exist. In some cases, a joint account is set up with the owners listed as "tenants in common" (often marked as "t in c"). In that case, the account ownership does not pass automatically to the surviving owner(s) at one owner's death. Instead, the deceased owner's interest (whatever that may be) does become part of his probate estate. The way you determine ownership of a financial (bank or brokerage) account under Georgia law is to look at the contributions made by each listed owner during their lifetimes. If the deceased owner actually put in 90% of the contributions, in other words, 90% of the account is his, and, if the account is owned as tenants in common, the deceased owner's estate controls 90% of the property in the account. The second situation is that, IF the account was established as a joint account by the primary contributor SOLELY so that the other listed owner(s) could help the primary contributor out with things like paying bills and managing investments (in other words, if the account was set up as a joint account for the convenience of the primary contributor), and the primary contributor did not really intend for the other owner(s) to automatically receive 100% of the account at his death, then the account becomes part of the primary contributor's probate estate. However, if a would-be heir wants to prove that a purportedly joint account was really established solely for the contributor's convenience and not to create a true joint tenancy account, the would-be-heir needs to provide fairly strong ("clear and convincing") evidence that that was the case. Or, the listed surviving joint owner could admit it and sign an affidavit, if he or she does not want to keep the entire account for himself or herself. In your case, you need to figure out how the account was actually set up. If it was a joint tenancy account (no tenants in common designation), you then need to look to your own knowledge of your father's intent to figure out what should happen. If you know he really meant for the account to get divided among his heirs, then you may want to sign an affidavit that the account was intended solely for his convenience. You could also claim the account, but then make gifts to the other family members. If you do that, however, you should be aware that you could be creating gift tax issues for yourself.
Answered on Jan 08th, 2013 at 10:15 AM

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