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Distribution of Estate.

Denver, CO |

Suppose the last surviving parent of two brothers dies without a will, leaving a $100,000 estate. Assume that according to the intestate law, the estate should be divided equally between the two brothers. However, one brother was party to a jointly held bank account (could be joint tenants with rights of survivorship, payment on death, or transfer on death) with $50,000 of the total $100,000 in it. Should this brother receive the $50,000 from the bank account plus $25,000 of the remaining $50,000 for a total of $75,000, or should he receive only the $50,000 from the bank account so the other brother also receives $50,000 rather than only $25,000? Would it make any difference if there were a will instructing the assets of the estate be divided equally?

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Attorney answers 3


This is too complicated to provide reasoned analysis. Sit down with a probate attorney to discuss all of the possibilities.

Good luck.

In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.


I assume that you are asking because you are the brother that was not on the account. Unfortunately, I think that you are out of luck, unless the Will specifically mentions the account and states that it was set up the way it was "for convenience purposes only." Your argument is even tougher if it was POD or TOD. If your brother is intent on keeping this account, I do not see much chance in your overturning it, UNLESS it was set up that way BY your brother, while acting under a POA form.

The Will applies only to probate assets. The account, as set up in your hypothetical, is not a probate asset, and would not be controlled by the Will.

So in your example, the appropriate legal result is 3/4 to one brother and 1/4 to the other. If this was not the parent's intent, then this is another situation where proper legal advice could have avoided a completely unintended result.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

Dennis Edward Valentine

Dennis Edward Valentine


I agree with Mr. Frederick's analysis based upon the summary information in the question. It is one reason why in my initial meeting with the personal representative or family of the deceased, I ask questions about the intent as well as form of ownership of non probate assets especially checking accounts. Colorado law does allow for the beneficiaries/heirs to write with everyone's agreement a new document revising the will. Dennis Valentine


Based upon the limited information in the question, the two brothers would each be entitled to $50,000 from the estate.

The information provided in this answer does not create an attorney-client relationship. If you are interested in a free consultation with Mr. Bryans, call The Bryans Law Office at (303) 832-2930.

James P. Frederick

James P. Frederick


I disagree. Under the limited facts presented, the estate only consists of $50,000. That would be split under the terms of the Will. That leaves one brother with $75,000 (consisting of the non-probate bank account) and $25,000 from the estate. The other brother receives $25,000. I do not see any way they would walk away 50/50, unless there is something Asker has not told us.

James P. Frederick

James P. Frederick


P.S. Asker indicated the estate was $100k, but then clarified that $50k of that was from an account passing by operation of law, to the other brother.

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