Estate planning is a gift to families and provides relief to the planner as well, who assumes that the estate’s assets will be distributed how and when the planner asks. Probate law is complex, however, and beneficiaries may be surprised when the distribution of assets does not go as expected. A common belief about bank accounts, for example, is that their contents can be distributed as the will stipulates, a very logical assumption. Unfortunately, many beneficiaries do not realize that most banking institutions place greater value on the bank’s own paperwork than they do on the instructions of a will or trust.
JTWROS and POD Accounts
Two types of banking accounts that do not pass through a will are the JTWROS and the POD. A Joint Tenants with Right of Survivorship (JTWROS) account lists at least two people on the account. If one of those people dies, ownership of the account and its contents passes to the other person or people listed on the account. A Payable on Death (POD) account also does not through a will; an individual opens a POD account and signs a document indicating the person or people who will receive the money from the account when that person dies.
These kinds of accounts do not pass through a will they because they are non-probate assets. If an account is opened as a JTWROS or POD account, the money in the account will be distributed to the person identified in the bank’s paperwork, regardless of what the will says.
Examples
Misunderstanding these accounts has sometimes caused confusion and even hardship for beneficiaries. For example, parent might create a trust for a child which prevents that child from having full access to the money within the trust until the child is no longer a minor. This is not an unusual stipulation and is generally designed to ensure that the trustee is mature and capable enough to manage the funds wisely. However, if that child is listed as the recipient of a POD account, all of the money is available to the child upon the death of the parent, even if in doing so the bank is not following the stipulations of the trust.
The complexity of beneficiary rights is further illustrated in the 1990 Texas court case of Stauffer v. Henderson. In that case, the decedent opened a JTWROS account with her sister, and upon the decedent’s death, the surviving sister withdrew the funds from the account. The decedent’s husband objected, claiming that the funds should be treated as community property, meaning that he had a right to half of the funds. In this case, the Court ruled in favor of the husband, not because the JTWROS lacks the ability to authorize delivery of the funds, but because it did not specifically identify ownership of the funds. Had the sisters signed a document stipulating right of survivorship and allowing the transfer of funds to the sister upon the decedent’s death, the surviving sister would have been granted ownership of the funds. Instead, the decedent’s husband prevailed in the case and the sister was not entitled to the money from the JTWROS account they jointly owned. Stauffer v. Henderson, 801 S.W.2d 858 (Tex. 1990).
Options
Opening a JTWROS or POD account is not a requirement in Texas; it is an option. An existing JTWROS or POD account can be changed to a non-JTWROS or non-POD account by sending a written request for that change to the bank. Making that switch results in a bank account which allows money to pass through the will exactly as the will stipulates.
Estate planning without the perspective and advice of an experienced probate attorney may result in unintended consequences for family members. An emotionally challenging time should not be further complicated by confusion and perhaps even litigation. Working with a probate attorney who has the knowledge and foresight to safeguard the estate and its beneficiaries is a wise first step in estate planning.
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