WHEN EQUAL ISN’T EQUAL: SPLITTING THE FLORIDA ESTATE EQUALLY EXCEPT FOR JOINT BANK ACCOUNTS IS OK–WHEN THE WILL AND JOINT BANK ACCOUNTS COLLIDE
Mom has passed away and now you have disagreements with family members over her bank accounts.
Problems with the Florida probate?
Questions about estate administration?
What if your mother said that she wanted to split her estate equally between her 5 children and had a Florida will that said exactly that? …..but she also had two bank accounts which designated only one of her daughter’s as sole beneficiary of those two bank accounts? In other words, the Florida probate estate was split equally or evenly among the five children, but the two bank accounts went to the one daughter, by right of survivorship. Does the Florida will affect the bank accounts?
No. The Florida will only distributes that property which mom hasn’t already disposed of. If mom, for example, gave away $200 to a local food bank for Thanksgiving last year, the food bank gets to keep that money. If mom placed her brother as the only beneficiary of a life insurance policy, guess what? Her brother gets the life insurance money as the beneficiary.
And…..you are probably way ahead of me……if mom “put” her daughter on two bank accounts as a joint tenant, or as a tenant with a right of survivorship, then mom’s right of survivorship choice gets honored. In other words, if mom chooses to create a Florida bank account as a joint tenancy or with a right of survivorship, then the daughter gets the two bank accounts, even if the will says give my Florida estate evenly to my five children. Unless……
Unless of course: 1) the bank account was never intended to have a survivorship feature and it was really what they call in Florida a “convenience” account in which case it “goes” to the estate (and, in the case of mom’s will, is split evenly among the five children); or 2) the creation of the joint bank account in Florida, the placing of daughter’s name on the bank accounts as a “joint tenant” or with a “right of survivorship” was improper. How could it be improper? If daughter exerted undue influence over mom or if mom didn’t know what she was doing when she changed the title to the Florida bank account.
Want to know more about how joint accounts in Florida affect a Florida will and an estate administration? There was a case in Florida handed down in June with these facts. In this very recent Florida bank account case, two siblings sued the daughter who got (inherited) the two bank accounts by right of survivorship. They claimed “undue influence”. The court went into an excellent explanation of what undue influence is in Florida, and how it may be used to set aside a lifetime gift, or, in this case, the creation of a joint bank account in Florida. The Florida appellate court also reversed the probate court and explained how joint accounts work with a will which says all to my kids evenly. Finally, the appellate court came right out and said that just because a daughter, or a child for that matter, is close to her mom, and may help mom with her financial affairs, does not mean that there is undue influence.
Having a Florida gift set aside, or “voided” or having a Florida bank account changed after death requires careful thought and analysis. These cases are very, very fact specific. Undue influence is a term that a lot of angry beneficiaries or family members throw around but may not know exactly what it is. Do you know the elements of undue influence? Do you know what you are looking for? Read this new Florida case. Do you know how to prove an undue influence case in a Florida probate trial? Ask your Florida probate lawyer. Advocate hard. Litigate smart.