Issue 38.13
A common source of fighting when someone passes away is having a surviving child on a joint account. The problem can arise because under Utah law, a joint account belongs to the survivor, regardless of a Will or trust provision that might say otherwise. In other words, a joint account trumps Will and trust provisions. A child who is the survivor on an account might claim that the account is now his, and exclude the rest of the family.
Whether or not the deceased person wanted to leave property to a named joint tenant or not can be a source of disagreement. It is not uncommon for a parent to name a child on a bank account for convenience. Usually the intent is to have the child be able to access the account in the event the parent is incapacitated or to pay immediate expenses at the death of the parent. But because that intent is typically never written down, contention can arise.
If a joint account owner takes the position that the joint account is theirs, they will usually win that argument under the law. In order to prove them wrong, the family has to show by clear and convincing evidence (the toughest legal standard) that at the time the account was created, the owner really had a different intention. Like I mentioned, usually the actual evidence that the owner really wanted to share the account with the whole family is tough to find. Rumors, assumptions, and loose understandings will not cut it.
It is important to consider if you have any joint owner on your accounts as you prepare your estate plan. If your intention is that the joint account actually be made part of your estate as a whole to be divided equally between your children, then you should strongly consider placing the account in a trust instead of using the joint account. Your family will still have immediate access to the funds in the event you become incompetent, and at your death they will still be able to obtain those funds without the need for court probate or other involvement. More importantly, it eliminates any question that you want the funds to be divided with your estate instead of going solely to the person on the account.
Sean Sullivan, Esq., is a founding attorney with Brindley Sullivan, PLLC. You can schedule your free consultation by calling his office at (435) 673-9220.