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WA-Probate > Probate-Litigation > Undoing Joint Tenancy Rights of Survivorship After Death
The Typical Situation
Decedent's Intent in Creating the Joint Tenancy
Decedent's Lack of Capacity While Creating the JTWROS Account
Signatory's Wrongful Actions During Creation of the JTWROS Account
Signatory's Ownership of Funds During Depositor's Life
Adult children expecting to take an equal share of the estate of the last of
their parents to die, as the parent had consistently told them they would.
The parent dies.
The children now find that the parent's assets were put into joint tenancy form with right of survivorship. Typically:
Just before the parent's death, and
By a favorite child or a recent acquaintance (such as a recently employed
care-taker) acting as an Attorney-in-Fact for the parent under the parent's
Durable Power of Attorney.
Consequently, the assets pass instead to the favorite child or the recent acquaintance as the surviving joint tenant.
Query: How may the joint tenancy's right of survivorship be "undone" after their parent's death, resulting in the asset falling back into the parent's probate estate and being distributed either under the parent's Will to its beneficiaries or by intestate succession (ie, inheritance) to the parent's heirs --- presumably, in either case, to all the parent's children in equal shares?
Consider the following hypothetical situation:
The joint asset in
question is a joint tenancy bank account.
The joint account expressly provides for right of survivorship ("JTWROS").
The account was created on or
after July 1, 1982, so the current law regarding joint tenancy bank accounts
applies to it.
The account is in the names of two persons, a depositor and a signatory.
The depositor (eg, an elderly parent - soon to become the Decedent)
is the contributor of its funds .
The signatory (eg, the parent's "favorite child," caretaker, or Attorney-in-Fact - soon to become the survivor) is not a contributor of any of its funds (ie, is not truly a depositor) but is authorized to deposit checks payable to the depositor into the account and to write checks on it for the benefit of the depositor --- the situation commonly called "joint tenancy for convenience only."
As discussed in Special Case #1: Joint Tenancy Bank Accounts, on the page Joint Tenancies, of the website section Washington Probate Avoidance, upon the depositor-Decedent's death, then, with one specific exception, the account's funds belong to the signatory.
Exception: If clear and convincing evidence shows that the depositor-Decedent intended otherwise when the account was created. RCW 30.22.100(3) [There are other, general exceptions, ignored here, as any transfer of property is susceptible to the same attack as the making of a Will, ie, the grounds for bringing a Will Contest, eg, lack of capacity, undue influence, fraud, duress, etc.]
This statute creates a "rebuttable presumption" that the
depositor-Decedent intended the account to pass by right of survivorship at
his/her death to the signatory. But:
This rebuttable presumption may be overcome by "clear and convincing"
evidence that the depositor-Decedent intended otherwise when the account was
If the presumption is overcome, the account's right of survivorship is "undone," and its funds will fall back into the Decedent's estate.
In the typical case, when he/she created the account, the depositor-Decedent was in declining health, thinking (if at all) moment to moment and not about the future, such as what would happen to the account at his/her death --- his/her immediate needs and motivation were to find someone available now to manage his/her financial affairs and pay his/her bills during his/her waning days.
Washington Cases "Undoing" or Potentially Undoing the Right of Survivorship Due to Decedent's Alternative Intent:
Estate of Davis, 23 Wn. App. 384 (1979); rev. denied 92 Wn.2d 1026
(1979). Decedent died survived by four adult children. His fifth
child, a daughter and the wife of the account signatory, predeceased him by
three days. Decedent, an invalid, had lived with the daughter and her
husband for 12 years prior to his death. During that period, Decedent
and the husband had opened several JTWROS bank accounts in their names
solely with Decedent's funds. Occasionally, the husband, as signatory,
made deposits and withdrawals on Decedent's behalf. The Trial Court
found "substantial evidence that the presumption of intent was rebutted, and
that [Decedent] intended those funds to go to his children upon his death,
rather than to [the husband]" and awarded the funds to Decedent's estate.
At page 385. The Court of Appeals affirmed the judgment.
Tripp v Scott, 29 Wn. App. 869 (1981). Decedent died survived
by his natural daughter ("Scott") and his two adopted daughters ("Tripp" and
"Foster"). Three years before his death, Decedent and his then living
wife moved to Spokane, where Tripp and Foster cared for them thereafter.
Nine months later, Decedent's wife died, and five months after that,
Decedent moved to Naches, where Scott could take care of him. A month
later, Decedent revised his Will, providing that all of his daughters share
equally in his estate and naming Scott as Executor. Around this time,
Decedent also deposited the bulk of his estate in JTWROS bank accounts with
Scott as signatory. Decedent's health declined, and he died 18 months
Tripp and Foster brought an action for misappropriation, alleging that Scott, as Executor, had failed in her duties by not dividing the bank account funds equally among the three sisters. The Trial Court granted Scott's Motion for Summary Judgment, on the basis of prior law that provided for a conclusive presumption of intent, instead of the current law's rebuttable presumption. The Court of Appeals held that Scott was not entitled to the conclusive presumption, opined "It is possible to infer from his will an intent that these funds should be equally divided among all three beneficiaries." (At page 874.), and remanded the case for trial on the issue of Decedent's intent. In footnote 5, the Court said, "[Foster] stated in her deposition: 'The only thing he said is that he is making her [Executor], and that she was to divide everything between the three of us. He said she would take care of it, so we just assumed she would.'"
Estate of Oney, 31 Wn. App. 325 (1982); rev. denied 97 Wn.2d 1023 (1982). Decedent died survived by neither a spouse nor any children. In his Will, he left his substantial estate equally to his four siblings. Before he died and while he was ill, he changed three bank accounts to JTWROS with his eldest sister, who he also named in his Will as his Executor, as a signatory. The Court stated, "Here, there is some evidence that the presumption of joint tenancy was rebutted by [the signatory] herself, who testified:
|Well, I signed two cards and he had to sign them and I suppose that was there so that if ever I wanted money to help him, I could get it." At pages 328-29.|
The Court then considered whether Decedent intended to make a gift to the signatory:
|In order to show a gift, there must be delivery ..., and the donee must acquire dominion and control over the account ...; the right to draw checks on the account is not sufficient to show a gift. [Citations omitted.] Additionally, there must be donative intent. [Citation omitted.] The trial court made no findings as whether [Decedent] intended to make a gift of the accounts to [the signatory]. The burden is on ... the party asserting the existence of a gift to show the transfer was a gift by "clear, convincing, strong, and satisfactory" evidence. [Citation omitted.] At page 329.|
The Court remanded the case to the trial court "for the purpose of making a factual finding as to the Decedent's intent when he created the accounts with the signatory as a joint tenant, ... whether he intended it to be with right of survivorship, a gift, or if her name was added merely as a convenience." At pages 329-30.
No pertinent Washington cases have been found confirming the Right of Survivorship.
As in the case of challenging the making of a Will, a JTWROS bank account may be challenged on the basis that Decedent lacked capacity to make it. No pertinent Washington cases have been found in which a Court has addressed solely the issue of a Decedent's lack of capacity while creating a JTWROS account.
Also as in the case of challenging the making of a Will, a JTWROS account may be challenged on the basis that during its creation, the signatory acted fraudulently or by duress or undue influence. See: Based on "Lack of a Testator," in the Questions about a Will section of WASHINGTON PROBATE LITIGATION.
Washington Cases "Undoing" or Potentially Undoing the Right of Survivorship Due to the Signatory's Undue Influence:
Doty v. Anderson, 17 Wn. App. 464 (1977).
Decedent died survived by her only son, presumably her only heir. She
was elderly, and her mental and physical health had deteriorated in the last
few months before her death, on March 20, 1975. For several years
before then, she had been assisted by Mrs. Wallace, a neighbor, in cooking,
running errands, and paying bills. In October and November, 1974, Mrs.
Wallace requested another person, Mrs. Anderson, to accompany her to the
bank to cash Decedent's checks. Thereafter, apparently under
Decedent's direction, Mrs. Anderson took over the management of Decedent's
money. In January, 1975, Decedent executed new signature cards for her
existing accounts, creating JTWROS accounts with Mrs. Anderson, who also
executed the signature cards. During January and February of 1975,
Decedent signed three checks totaling $3,000. Mrs. Anderson cashed the
first $500 check and kept the money for Decedent, who used all of it.
Mrs. Anderson cashed the second $500 check, kept the money to pay for
Decedent's bills, used $30 for that purpose, and later acknowledged that the
remaining $470 belonged to Decedent's estate. The third check, for
$2,000, was payable to Mrs. Anderson, who claimed it was a gift to defray
her medical expenses. Following Decedent's death, Mrs. Anderson
transferred the funds from Decedent's JTWROS accounts to her own account.
Decedent's son brought an action to recover the money that had been in the JTWROS accounts and the portion of the $3,000 checks kept by Mrs. Anderson. The trial Court entered judgment for the son. The Court of Appeals found that the same factors determining undue influence in the making of a Will controlled in the making of a JTWROS account:
1. The beneficiary occupied a fiduciary or confidential relation to the Testator;
2. The beneficiary actively participated in the preparation or procurement of the will; and
3. The beneficiary received an usually or unnaturally large part of the estate.
Added to these factors may be other considerations, such as:
4. The age or condition of health and mental vigor of the Testator;
5. The nature or degree of relationship between the Testator and the beneficiary;
6. The opportunity for exerting an undue influence, and
7. The naturalness or unnaturalness of the will.
And that proof of undue influence must be by clear, cogent, and convincing evidence.
The Court then applied these considerations to the facts at hand:
1. The beneficiary had occupied a fiduciary or confidential relation to the Testator;
2. The beneficiary had actively participated in the change of ownership of the account; and
3. The beneficiary had received an usually large part of the estate.
Added to these considerations were these facts:
4. The Decedent's age and physical and mental condition were such that she was very susceptible to undue influence;
5. The beneficiary was in a confidential relationship with the Decedent;
6. The Decedent had trusted and relied upon the beneficiary; and
7. It was unnecessary for the beneficiary to be a joint tenant, as the Decedent could have signed her checks by herself..
The Court concluded, "[T]here is sufficient evidence, by the clear, cogent, and convincing standard, to overcome the statutory presumption that [Decedent] intended to transform her bank accounts into joint tenancy with [the signatory]." At page 470. See also: Estate of Randmel v. Pounds, 38 Wn. App. 401 (1984).
5. Signatory's Ownership of Funds During Depositor's Life ñ
During the life of a depositor:
The depositor is the one who is considered to
own the funds in the account.
If there is more than one depositor, they are
considered to own the funds in the account in the same proportion as each
has deposited net funds into the account.
By creating a joint account, a depositor does
not make a present gift of the funds to the signatory. Estate of
Krappes, 121 Wn. App. 653 (2004).
A signatory has no ownership interest in the
Estate of Lennon, 108 Wn. App. 167 (2001).
Any joint tenant has the right to withdraw all of the funds, and the bank may pay all the funds to any joint
tenant regardless of whether any other joint tenant is alive, legally
disabled, or deceased.
Note: this does not establish ownership of the funds among parties to the account - it only allows any of the parties to make a withdrawal and exculpates the bank from responsibility to the other parties upon one party's withdrawal of funds.
Caution: Right of withdrawal is not the same as right of ownership. While the depositor is alive:
"Funds on deposit in a joint account belong to
each depositor in proportion to their ownership of the funds. ...
Although [a signatory has] a right as joint tenant to withdraw the
funds, they [do] not belong to [him/her]." Estate of Tosh, 83
Wn. App. 158, 166 (1996).
Signing a joint tenancy signature card does not
make a signatory the present owner of any of the account's funds --- it only
evidences the parties' present intent of future right of survivorship,
upon the depositor's death. State v. Mora, 110 Wn.
App. 850 (2002); Estate of Krappes, 121 Wn. App. 653 (2004).
If a signatory withdraws funds with the
depositor's consent, the withdrawal is a gift from the depositor to the
If a signatory withdraws funds without the depositor's consent, the withdrawal is theft. State v. Mora, cited above [Signatory convicted of theft of joint tenancy account funds]. The wrongfully withdrawn funds belong to the depositor (or, if he/she has died, his/her estate, unless it can be shown that such would result in unjust enrichment, in which case the funds will be returned to the surviving joint tenant through the imposition of a constructive trust). Estate of Krappes, 121 Wn. App. 653 (2004).
See also RCW 11.86.011, which provides, at least for purposes of disclaimers, "A joint tenancy interest of a deceased joint tenant shall be deemed to be transferred at the death of the joint tenant rather than at the creation of the joint tenancy."
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