Short of a criminal forgery of signature(s), there is no way for your aunt to legally do what you believe she has done. The natural conclusion would be that your grandmother did this. There are not enough facts provided in your summary to give you any real guidance other than to tell you to have your mother retain an attorney to investigate further. You need to know more about WHAT was done, before you can determine whether there is any way to undo it.
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When you die, you leave an estate of property, which can be classified as either probate or nonprobate property, that has to be distributed to living beneficiaries. Probate property is distributed under the supervision of the probate court, and includes property distributed according to a will and property distributed under intestacy, which is the default distribution scheme defined by state law that applies when the decedent left no will or did not include all of his property in the will. Nonprobate property is any property that is distributed to beneficiaries outside of probate.
Since probate is time-consuming and expensive, many people have sought ways to transfer property outside of probate upon their death. Although living trusts remain the best means of transferring property outside of probate, there are other methods — generally referred to as nonprobate transfers — that are easier to implement. You can mix-and-match these nonprobate transfers with a trust and will.
Payable-on-death (POD) financial accounts allow you to name a beneficiary on a form provided by the financial institution where you have your account, which can include bank accounts, including savings, checking, or certificate of the of deposit accounts; so-called Totten trusts are an example of this; some government securities, including treasury bonds, treasury bills, and treasury notes. The beneficiary has no right to the money while you are alive so you can do whatever you want with it; however, it can be frozen by the state if there is an estate tax due. In some states, you may have to notify the beneficiary that you have set up an account for them. The bank can let you know if beneficiary notification is a requirement.
Transfer-on-death (TOD) registration for stocks and bonds are allowed in every state except Texas, where you can register securities, including mutual funds, on a TOD form simply by designating the beneficiary to receive the securities upon your death. The brokerage company or other financial institution can provide you with the form.
Transfer-on-death real estate deeds, that are better properly signed, notarized, and recorded in the county where the real estate is located, allows real estate owners to transfer their property after death to a named beneficiary. The TOD deed must clearly state that the transfer to the beneficiary is not to take effect until your death.
Some states — California, Connecticut, Kansas, Missouri, and Ohio — also allow registration forms for motor vehicles to have a named beneficiary in case the owner dies.
Individual retirement accounts, such as IRAs, Roth IRAs, SEP-IRAs, and 401(k) plans allow you to designate the beneficiary. However, with the exception of a Roth IRA, you must begin withdrawing money from your account by the time you reach 70 ½ or you will have to pay a penalty since the government was to start collecting taxes from your account at some point. You are not required withdraw money from Roth IRA, because the money has already been taxed.
The proceeds of life insurance are income tax-free and can pay the debts and expenses of the estate. However, it should be paid directly to a family member rather than to the estate to avoid probate and estate tax. To avoid estate tax on the life insurance proceeds, you can transfer ownership of the policy to a beneficiary or to an irrevocable life insurance trust. However, the life insurance policy must be transferred at least 3 years before the death of the insured to avoid its inclusion in the estate.
Joint tenancy is the ownership of property in equal shares by more than one person. In most states, a joint tenancy can be created by listing themselves as joint tenants with rights of survivorship on the deed or property title. If a joint tenant dies, then his share is divided equally among the remaining joint tenants without going through probate. However, probate is not avoided if all joint tenants die simultaneously.
The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Howard Roitman, Esq. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.