Jointly Held Accounts Pass Outside of Probate

Q: My elderly mother has a will stating that her estate, which consists solely of a small amount of money, shall be divided equally between her three children. This will was written a long time ago. I have been my mother's caretaker and my name is on all of the accounts with my mother. One sibling has done nothing to aide my mother.

Upon my mother's death, can I give one sibling a smaller portion of money and divide the remaining moniesbetween myself and the other sibling? Or does the will supersede the fact that my name is on all of the accounts?

A: Your unhelpful sibling is not entitled to any of the money held jointly between your mother and you. This is the rule, even though her will directs her executor to distribute all of her assets equally to all children. Because the account was owned jointly with you, the entire cash balance will transfer directly to you immediately upon your mother’s death.

Any property, real estate or cash, held jointly gets passed to the joint owner outside of probate, and thus, outside of the Will's governance. Your mother's Will can only pass property she held individually. Sharing the cash among your siblings, equally or in differing percentages, is a choice which is completely up to you. Be careful, as there may be some gift tax implications when sharing these funds with your siblings, so contact an accountant.

Attorney James Haroutunian practices estate planning, real estate law and small business planning in Billerica at 630 Boston Road. Contact him to begin an estate plan or with questions at 978-671-0711 or email him at james@hlawoffice.com.