It is very common for an owner of a bank account to “add” someone to his/her account for personal convenience. A typical reason that an individual will choose to add someone to a bank accounts is so that the added person can have access to the funds for the original owner’s benefit. The person added to the account is usually the original owner’s child, caregiver, spouse, or other trusted individual. This is especially common if a child is already assisting an elderly or disabled parent with managing their bank accounts and with paying bills. Setting up an account this way may be convenient for the original account owner during his/her life, but that convenience can lead to some very inconvenient situations after the original owner’s death—often including litigation between the original owner’s heirs to determine the survivorship rights in these joint accounts.
The original account owner may not give much thought to survivorship rights to the account when he/she adds an individual’s name to the account. This may be because the owner already has a last will and testament or a testamentary trust that dictates how his/her assets will pass after death. However, under Florida Statute Section 655.79, unless expressly stated otherwise in the contract, agreement or signature card executed in connection with the relevant account, any account that is titled in the names of two or more persons creates a presumption that all ownership rights in the account automatically pass to the surviving owners upon the death of any owner. The statute does not provide any explicit words that are required for this presumption to arise, just two or more owners. The inclusion of the word “or” between the names as opposed to “and” makes no difference in whether the presumption arises.1 An account owner’s will or trust will not prevent this presumption from arising, and the financial institution has no duty to inform the account owner of this presumption. This means that the surviving owner can simply walk into the bank after the original owner’s death and withdraw all of the funds as their own.
The deceased owner’s personal representative is typically the party who has standing to file a legal proceeding to rebut the presumption that the ownership rights to the account passed to the surviving owner(s). But this is no easy task. The survivorship presumption can be overcome by proof of fraud or undue influence.2 Fraud can arise in certain situations where the survivor used deceit or other fraudulent means to cause his/her name to be added to the account. An undue influence claim may arise where the surviving owner took advantage of a person with a diminished mental or physical capacity, had a close personal relationship with the decedent, and was very active in procuring the addition of his/her name to the account. An example of this is when a person takes all necessary steps to cause his/her name to be added to the account, including taking an elderly person who was suffering from dementia to the bank and tells the bank employee that the account owner wants to add the influencer to the account. However, merely driving the decedent to and from his bank, without more, is insufficient evidence of procuring joint accounts to establish to the presumption of undue influence.3
Typically, the circumstances that result in the survivor’s name being added to the account do not give rise to a claim of fraud or undue influence because the owner intended to add the person to the account, but the problem is that the original owner may not have intended to convey any ownership rights or survivorship rights to the added owner. In this situation, Florida law shifts the burden of proof to the estate of the original owner to prove, by clear and convincing evidence, that survivorship was not intended.4 It can be very difficult to prove that the original owner did not intend the funds to pass because it usually is one side’s biased testimony against the other side’s equally biased testimony. The lack of intent on the part of the original owner to make a present gift to the surviving owner when the survivor is added to the account is not enough evidence to overcome the presumption.5 The presumption only deals with intent for the funds to pass to the survivor upon death of the original owner—not on the intent of the parties regarding the status of the property during their lives. In the absence of a clear statement, whether oral or written, by the deceased or other evidence of a contrary intent based upon testimony from the attorney who prepared the deceased’s estate planning documents, a bank employee, or a person with special knowledge regarding the decedent’s estate plan, it will be difficult for the estate to prevail in this type of case.6
Account owners can take steps to clearly document how they intend for their joint accounts to pass upon their death by including language in a will or trust or by another written statement. But such documents will only provide evidence of the deceased owner’s intent and will not prevent the presumption of survivorship from arising. For instance, if a mother has three children and adds Child A as a joint account owner but also states in her will that all three children should receive the funds upon her death, Child A will still have the presumption of survivorship in his/her favor, which a court could find is not overcome by the mother’s will without evidence of fraud or undue influence. The best way to prevent litigation is to avoid joint accounts and allow property to pass through a will or trust. This allows property to pass based upon the original owner’s actual intent, rather than his/her presumed intent.
The following are a few alternatives to making an account a joint account:
- an account owner can appoint an agent to act on his/her behalf under a Durable Power of Attorney;
- an owner can create a statutory convenience account as the principal and designate someone else as his/her agent (often designated at the financial institution as “POA”) with limited authority to deal with the account;7
- an owner can create a “pay on death accounts” where an owner can specifically designate a beneficiary to receive the account upon his/her death;8 or
- an owner can create a Totten trust account where the owner maintains complete dominion and control over the account during life, but all rights pass to a beneficiary who is designated with “ITF” (in trust for).
These options allow for flexibility and do not give the agent survivorship rights unless the owner specifically intends to grant those rights and also allow the owner to revoke these designations within his/her lifetime.
Using a standard joint account as a convenience account is usually not that convenient and should be avoided in most circumstances. The main goal of the joint account statutes is not to carry out the deceased owner’s exact intent but is mostly to protect the bank from liability to the deceased owner’s heirs. Using a joint account as a convenience account will usually only benefit the litigation attorneys, but not the original owner or his/her heirs.
1 See In re Estate of Herring, 670 So. 2d 145 (Fla. 1st DCA 1996).
2 Fla. Stat. § 655.79(2).
3 See Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994).
4 Fla. Stat. § 655.79(2).
6 In re Estate of Combee, 601 So. 2d 1165 (Fla. 1992).
7 Fla. Stat. § 655.80.
8 Fla. Stat. § 655.82.
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