JTWROS in Texas

Asked over 1 year ago - Beaumont, TX

My father specifically named a bank account in his Will in 2007 as his separate property and going to his children; however, in 2006 (prior to the Will) his wife was added to the same account with JTWROS. This is totally contradictory to each other. There is another account specifically named in his Will designated to be split equally between stepmother and three children; however, she was added to this account JTWROS 18 months after the Will. Can these JTWROS designations be challenged? And there is another Account Change Card that is not dated. What can we do to have the estate go strictly by his Will in that he had worded it so carefully as to who he wanted to have which accounts?

Attorney answers (5)

  1. David M. Pyke

    Contributor Level 15

    10

    Lawyers agree

    Answered . This is one of my least favorite things to see in Probate practice. We know that the will represents what the decedent wanted, but some boilerplate in an bank account agreement contradicts it. Unfortunately, as a general rule, a JTWROS agreement trumps the will. For the will's directives to control, the JTWROS would have to be set aside on grounds that your father lacked capacity at the time he signed the account agreement or was subject to undue influence. This is a trap in the law that people often don't realize they are creating ROS agreements and that they trump their will. But, there is no way to prove now that your father didn't understand what he was signing UNLESS he was incompetent or unduly influenced. In other words, you can't just argue, "he didn't intend this." You have to prove "he didn't know what he was doing at all." The law presumes he read the account agreement, understood it, and signed it willingly.

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  2. Andrew Davis Oostdyk

    Contributor Level 9

    6

    Lawyers agree

    Answered . I'm sorry for your loss. Unfortunately, you likely will not be able to have the accounts distributed per the terms of the Will. Adding his wife to the two accounts, appears to make the accounts Community Property meaning his wife owned 50% of the account already. Plus the JTWROS designation, allows his wife to present a Certificate of Death to the bank to have the accounts solely put into her name. Unless she is willing to hand over the accounts to the children outside of the Estate Administration, you are not entitled to them.

  3. Jessica Anne Newill

    Contributor Level 12

    4

    Lawyers agree

    Answered . Sorry to hear about your situation. I agree with the other answers. A payable on death desigantion or joint tenancy with right of survivorship designation takes the account completely out of probate, meaning the account is not a probate asset. The will directs what happens with probate assets. Since the account is not a probate asset, it is not controlled by the will, despite the fact that it is specifically mentioned. As the other answers indicate, your only means of invalidating the designation is to show undue influence or lack of capacity, both of which are difficult to prove. These type of challenges are expensive and usually not worth pursuing unless the estate is large. There's also the chance his wife may honor the will and agree to split the fund, however unlikely. All this being said, it cannot hurt to have a probate litigation attorney review your case.

    Good Luck.
    Jessica Newill
    Newill Law Firm

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  4. Kendall Shane Cockrell

    Contributor Level 15

    1

    Lawyer agrees

    Answered . I agree with the above answers. "A contract trumps a will." This is obviously an over-simplification, but it seems to put it in non-lawyer terms pretty well. Regardless of the bank account in question, you need to probate the will within four years of his death. Otherwise his probate estate will likely pass under the intestacy succession laws of Texas. I am in Beaumont if you decide you need to speak with a lawyer about any of these issues.

  5. Orsen E. Paxton III

    Pro

    Contributor Level 17

    1

    Lawyer agrees

    Answered . I would only add that I am aware that some bank employees are poorly trained on setting up accounts. Some of them believe that if there is a joint account then it MUST be set up as a JTWROS. They just set it up that way automatically and the person signing the account card never knows it has been done. So, if someone were to file a lawsuit seeking to set aside the JTWROS designation, they might be able to support the allegation with testimony from the bank employee that set up the account that said "No. I didn't discuss it with him. That is the way I was told to set up all joint accounts."

    DISCLAIMER: This is not specific legal advice and does not establish an attorney/client relationship.

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