Skip to main content

Does a will supersede a Transfer On Death under certain circumstances?

Chandler, AZ |

Our father passed away a month ago. He had a clause in his will that said all his assets should go to his surviving children that were alive 30 days after his date of death. Sadly, our sister passed away two weeks after our father passed. The TOD names all his children as beneficiaries. Our sister was single with no children and leaves no estate however, the bank is telling us her share goes to her estate and it will have to be probated. Is there a court document that we can file that will advise the court of the circumstances so her inheritance does not have to be probated?

+ Read More

Attorney answers 3

Best Answer
Posted

The bank is likely correct. What the will says does not control. Rather the terms of the TOD account control. SInce your sister died after your father, he share of the TOD account became "vested" when he died, and the account now belongs to her estate. You may need probate unless the account was small enough to qualify for small estate procedures under Arizona law.

Asker

Posted

Thank you for your comments. Although out father wanted the funds to go to his surviving children, the TOD does take precedence. Fortunately, our mother will work with us and ultimately give us the money but, it will take me about six months, a bunch of paperwork with the court and filing fees etc. to resolve this legal problem. No one could have predicted our sister passing so soon so we just have to stuggle through it now. It is only difficult because of the grief we are experiencing but, we'll get through it all eventually. Thank you for your very good answer. I'm sure it will help others out there.

Asker

Posted

Gosh, wish I could edit my answer. Sorry for all the typos.

Asker

Posted

The money goes from my father to my sister per the TOD, then to my sister's estate and if no husband or children (which there are not), then to her surviving mother. If there is no surviving mother then to my sister's siblings which are us. I wish there was a simple document that explained to the court that we have worked it out amongst us (that our mother also intends for us to get the money) but, no such thing exists so, we have to do the probate.

Posted

It would most likely still need to be probated.

Feel free to give me a call for a no-cost, no obligation consultation.

Good luck.

Scott A. Mac Leod is licensed to practice law in Arizona. The information provided here is for educational purposes only and is not intended as legal advice for a particular matter. This response does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult an attorney.

Asker

Posted

Thank you for your reply. I have already started the informal probate process. It was not the answer I had hoped for but, it makes sense unfortunately.

Posted

It sounds to me like the bank is correct. Depending on the amount involved you may be able to use a small estate procedure to avoid full blown probate of this share. It is likely that you and your siblings would be the ones receiving this, anyway. An attorney can analyze this for you and determine if there may be a shortcut to getting you these funds.

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!

Asker

Posted

In Arizona, the proceeds go to my mother who divorced our father 20 years ago. It it kind of ironic. After the probate process, she will give the funds to us children but, legally the money is hers and her tax liability too unfortunately. We will work out the details among us.

James P. Frederick

James P. Frederick

Posted

If the funds are small enough, maybe you can use a small estate proceeding, to keep costs down. The good thing is that your mother is cooperating. I see MANY MANY cases where that does not happen. Make sure you give her an extra hug at Christmas!

Asker

Posted

It's over the limit but, not huge. Fortunately or unfortunately, I have a background of working with attorneys, working with contracts and working in finance so, I can handle this ... just wish I didn't have to. In time it will get easier. Our mother is very precious to us. We had our family dysfunctions like most but, we always take care of each other financially. I know this is not the norm but, it should be. Nothing is more valuable than the love we share and of course our health. Wishing you many blessings during the holidays.

James P. Frederick

James P. Frederick

Posted

You are very fortunate and have a great perspective. Best wishes to you and your family for a Merry Christmas and Happy New Year, as well!

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer