[WSBAPT] Joint tenency with right of surviviorship accounts

[Lovie Bernardi]

Dear listmates,

 

I would appreciate feedback on my analysis of where the funds in two
JTWROS accounts of the decedent should go, to the surviving spouse
outright, or into the estate account for eventual distribution to a
testamentary trust for the benefit of the surviving spouse. Please
forgive the length.

 

In the probate in question, there are two JTWROS accounts. One was set
up by decedent shortly after her marriage to surviving spouse. We
believe the funds used to open the account were her separate property.
We assume that when the account was set up, she intended it to be a
JTWROS with the surviving spouse. Later, as her ability to manage her
affairs diminished, her daughter from a prior marriage (named PR in the
will) was added as a joint tenant. Daughter agrees this was for
convenience, and there was no intention for her to have the right of
survivorship. At the same time, daughter was also made attorney-in-fact
for her mother, effective immediately. Acting in that capacity, the
daughter transferred money from her mother's separate property checking
account to the JTWROS account. The amount that was transferred exceeds
the date of death balance of the credit union account. She also opened a
JTWROS brokerage account with the mother, using some credit union funds,
but mostly funds from the separate checking account. Daughter agrees
that her name was on the account for convenience and that she should not
receive them as a survivor.

 

Relevant statutes: RCW 30A.22.100 (formerly RCW 30.22.100) provides that
subject to community property rights, "Funds belonging to a deceased
depositor which remain on deposit in a joint account with right of
survivorship belong to the surviving depositors unless there is clear
and convincing evidence of a contrary intent at the time the account was
created. If there is more than one individual having right of
survivorship, the funds belong equally to the surviving depositors
unless the contract of deposit otherwise provides. If there is more than
one surviving depositor, the rights of survivorship shall continue
between the surviving depositors." 

 

Unless provided in the durable power of attorney specifically, RCW
11.94.050 provides an attorney in fact does not have the power "to make,
amend, alter, or revoke ... designation of persons as joint tenants with
right of survivorship with the principal with respect to any of the
principal's property ... [or] to make any gifts of property owned by the
principal."

 

My analysis: The daughter had no power to gift the separate property in
the mother's separate property checking account to the JTWROS credit
union account. Since the funds remaining in the account are less than
the separate funds placed there, those funds should go to the estate.
The funds in the brokerage account that came from the separate checking
account should go into the estate account as well. The daughter did not
have the power to gift them, nor did she have the power to create a
joint tenancy account. The funds in the brokerage that came from the
credit union account should go to the estate, as long as we confirm all
the funds in that account at the time of the transfer were the mother's
separate funds.

 

If my analysis is correct, how should I proceed? The daughter will
voluntarily place the funds from the brokerage account in the estate
account. How about the credit union account? Do we ask the surviving
spouse to disclaim? If he will not, do we petition the court for a
ruling on the nature of the funds?

 

Thank you in advance to everyone who wades through this email and
responds.

 

Lovie Bernardi

Attorney at Law

Seligmann & Flaherty, PLLC

216 First AVE S, #450

Seattle, WA  98104

(206) 682-2616

 

lovie at sbfirm.com <mailto:joni at sbfirm.com> 

http://sbfirm.com <http://sbfirm.com/> 

 

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