A right of survivorship can be challenged but it’s not a guarantee that you will win the challenge. You would have to prove a number of factors.
Challenging a right of survivorship bank account often occurs when a parent dies and a child’s name is listed as a co-owner in the bank account. Usually, this child’s name is included in the bank account to help manage the parent’s financial affairs. The other children then contest their sibling’s ownership of their parent’s bank or investment account. But how can you successfully challenge a sibling’s ownership over a right of survivorship bank account?
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Legal standing to challenge a sibling’s ownership of a right of survivorship account
The first step in challenging a sibling’s ownership of a right of survivorship bank account is to ensure you have standing to question it. The most often-used argument in contesting a joint bank account is claiming that the decedent is entitled to the entire proceeds of the account. To claim that the decedent owns the account, you must be the personal representative of the decedent’s estate – which means you have been appointed as either executor of the will or administrator of the estate. To be appointed, you must file a petition for probate or administration.
What if the sibling who owns the right of survivorship account is the personal representative?
When the sibling who owns the right of survivorship account is the personal representative, then you will usually find out about the non-inclusion of the joint account when the sibling submits an accounting. In this case, as beneficiary or distributee, you can file your objections to the personal representative’s accounting, and the court can then decide whether such right of survivorship account should be included in the decedent’s estate.
How do you prove that your sibling does not own the right of survivorship account?
If you are the executor or administrator, proving that your sibling does not own the bank account and that your parent’s estate should be entitled to the proceeds of such account can be expensive. It will require discovery of the bank’s records. As personal representative, your legal fees are paid for by the estate. If your sibling was malicious in claiming the joint account, you may be entitled to collect your legal fees from your sibling.
To contest a joint bank account, you must first check if your sibling has a power of attorney. If your parent executed a power of attorney in favor of your sibling and this power of attorney includes the authority to make bank or financial transactions, you could already challenge your sibling’s ownership of the right of survivorship account by arguing that your sibling’s name was included only as an agent to help your parent manage his financial affairs and not as an owner.
Second, if you already have the bank records, check the signature card if it contains words of survivorship or if your sibling’s name is on it. If the joint account is an “or” account without words of survivorship, there is no presumption that your sibling has the rights of a survivor when your parent dies. It is your sibling’s burden to prove that he jointly owns the account.
Sometimes, there are only two names in the signature card (such as both parents) and the sibling’s name was added into the account. In this case, there can be no presumption of joint tenancy with rights of survivorship because joint tenancy requires unity of time, title, interest, and possession. Though there may be a joint tenancy with rights of survivorship between the parents because both parents signed the signature card at the same time, this presumption does not extend to a sibling whose name was simply added later on. The signature card must be signed by all joint tenants and must contain words of survivorship. When the signature card is not signed by all joint tenants, even if the account statements say “joint tenancy with rights of survivorship,” these account statements do not control because the joint tenants’ signatures do not appear on it and do not show an intention of the joint tenants to be bound.
Without a signature card that conforms to the requirements of state law, you shift the burden to your sibling of proving that such joint account is a joint account with rights of survivorship.
How do you contest the joint account if the signature cards contain your sibling’s and parent’s signatures and include words of survivorship?
When the signature card conforms to the requirements of state law (e.g., includes words of survivorship and the signatures of all the joint tenants), then the burden of proving that the joint account is not an account of survivorship rests on you.
Although overcoming the burden is high, it is not impossible. Here are some factors that the court will consider in determining whether a joint account is an account of survivorship:
- Decedent was elderly.
- There is no evidence to indicate that decedent intended to create a joint account or that he understood the nature and consequences of a joint account.
- Joint tenant admitted that he could not have withdrawn any money from the accounts without decedent’s permission.
- Decedent’s will leaves all of his estate to his children, share and share alike.
- Respondent’s conduct and statements contradict the belief that the money in the convenience account is his.
- Funds were transferred from an earlier account held in the name of decedent.
- There is a fiduciary relationship between decedent and respondent.
Although not all factors need to be present, the presence of a majority of the factors may lead the court to conclude that the joint account is an account with rights of survivorship.
Should you need an attorney specializing in challenging bank accounts with rights of survivorship, we at the Law Offices of Albert Goodwin are here for you. We are located in New York, NY. You can call us at 212-233-1233 or send us an email at [email protected].