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My name is “on” my mother’s account so, won’t it avoid Probate?

 

The title of this article is a common misconception that people have about avoiding probate. A person will assume that just because he has been designated as his parent’s Agent in his parent’s Power of Attorney (POA) that he will have access to his parent’s bank account after the parent dies. The person will incorrectly assume that having his name listed “on” his parent’s account will be enough to avoid probate. The main reason why this is not true is because a POA is void and the Agent loses all “powers” when the Principal (the giver of the POA) dies.

Probate, power of attorneyThe correct way to title a bank account to avoid probate is Joint Tenants With Rights Of Survivorship (JTWROS). We do not recommend, however, that an account be titled JTWROS with anyone other than your spouse or the sole heir who you want to receive all of the money remaining in your bank account after your death.

First of all, that joint tenant is considered to be a co-owner of the account and if there is a judgment against the child, the creditor can garnish mom’s entire account.

Secondly, parents who have more than one child should take caution when putting one child alone on their bank account as JTWROS because by doing so, you are effectively excluding your remaining children or heirs from having any right to the money remaining in your bank account after you die, regardless of what your Will says. Yes, having someone designated as JTWROS does avoid probate in many situations, but it can also open up a multitude of issues.
The bottom line is that you shouldn’t take your estate planning into your own hands and just make all of your accounts JTWROS without first talking to an attorney who can determine if that strategy is the best course of action for your estate planning goals


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Gary Crews regularly gives speeches to various non-profits, clubs, civic organizations, and businesses. He speaks about topics such as Estate Planning, Probate, Business & Corporate Law.  If your group needs a speaker, give us a call to schedule Mr. Crews.

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