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Law Pro
Law Pro, Attorney
Category: Estate Law
Satisfied Customers: 23751
Experience:  20 years experience in estate and trust planning, probate, and wills
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does community property right supercede pay on death clause

Customer Question

does community property right supercede pay on death clause on bank account
Submitted: 5 years ago.
Category: Estate Law
Expert:  Law Pro replied 5 years ago.
What state are you in? What happened or is happening here? Thank you.
Customer: replied 5 years ago.

This takes place in Texas. I have been seperated from husband but remained married. His sister has power of attorney. He just died Monday. He made a will and now she is refusing to probate and has taken over the small amount of cash involved. His will stated our daughter, age 31, to be the sole beneficiary.

 

I have stayed out of it until she has decided to not probate will, but now have my doubts as to what is going on. She signed a check on his behalf as "by my spouse" to me for money owed before he passed.

 

I am just wondering if it's worth contacting a local attorney and spending the money if indeed the accounts were POD, and if that invalidates my community property right.

Expert:  Law Pro replied 5 years ago.
Who did he name as the executor in his will? The POA ends upon his death - her signing anything after his death is illegal.
Customer: replied 5 years ago.
He named her executor but I don't know if will was recorded, and as executor can she arbitrarily decide not to probate?
Expert:  Law Pro replied 5 years ago.

She can't be the executor until she does probate - it's the act of probating the will which names her the executor or executrix which allows her to do anything on behalf of the estate. Unless she does probate the will - she absolutely has no authority to do anything whatsoever.

 

That the bank account was individually owned by him - that money goes into his estate.

 

Texas Intestate Succession Laws

If any part of a Texas decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to depends on these situations:

  • If there are surviving children or direct descendants of the decedent, the surviving spouse takes one-third of the personal property in the estate, with the balance going to the children and descendants. The surviving spouse is also entitled to an interest in one-third of the land in the estate for the rest of his or her life (a.k.a., a life estate), with the remainder going to the decedent's children and descendants.
  • If there are no children of decedent or their descendants, the surviving spouse is entitled to all the personal property in the estate. The surviving spouse also gets outright ownership of one-half of the decedent's lands. The other half of any lands passes according to the distribution rules below (except that the surviving spouse gets everything if there are no surviving father, mother, or siblings, and their descendants, of decedent).

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes in the following order to:

  1. Decedent's children and their descendants.
  2. Decedent's parents equally if both survive. If only one parent survives, however, the estate is divided into two equal portions, one of which passes to the surviving parent and the other half passes to the decedent's brothers and sisters and their descendants If no siblings or their descendants exist, the whole estate is inherited by the surviving parent.
  3. Decedent's siblings and their descendants.
  4. If none of the above are available, then the inheritance is divided into two equal shares ("moieties"), one for decedent's paternal kin and one for decedent's maternal kin, and distributed in the following order:
    1. To the grandfather and grandmother in equal portions.
    2. If only one of the grandparents is living, then the estate is divided into two equal parts, one of which goes to the survivor and the other goes to the descendants of the deceased grandparent. If there be no such descendants, then the whole estate is inherited by the surviving grandparent.
    3. If both grandparents are deceased, then the entire portion goes to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
    4. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

3. State of Texas. If there is no taker under any of the above provisions, the intestate estate passes to the state of Texas.

 

In the nine "community property states," including as Wisconsin, Arizona, Nevada, Texas and California, a surviving spouse automatically owns 50% of the assets either spouse acquired during the marriage upon death.

 

So, does he have much in the way of assets?

 

 

Customer: replied 5 years ago.

Not much in assets, around $5000 in cash. She wrote a check to pay for the cremation after the death which would come out of that. She informed my daughter that she would keep anything "after the bills are paid". We have no idea how much that would be.

 

She is claiming that she is going to "pay his bills", but since she won't perform as executor and do the work involved, I question what bills she will pay if any. I looked it up and there are certain procedures to follow.

 

What would be my move to shut this down and proclaim my community property rights? Would a notice to the bank involved work? Would that be valid if it came from me personally? How would I see to it that she stops acting in the name of being "executor"?

 

As I understand your reply, even if he did sign a POD in her behalf, I would STILL be entitled to 50%, right? The POD is what has stopped me from acting and the bank won't even tell me if there is a POD clause in effect.

 

 

Expert:  Law Pro replied 5 years ago.

I hate to say it, but you will have to petition for probate of the estate yourself and ask that you be named the administrator because of her failure to perform her fiduciary duties.

 

She's operating like a "loose canon" and who knows what she is doing and how much there really is. There may be other assets that you don't know about - doubtful - but one never knows.

 

Here's what I would do:

 

1) Inform her that you will petition the court for probate of his estate if she doesen't give you fill access to any information you want. Additionally, inform her that she is committing forgery and potential theft of funds by signing his name or hers without court authorization. That the POA ended upon his death. That if you do petition the court - you willhold her personally accountable for everything she's done and pursue her for such

 

OR - if she doesn't do such

 

2) contact a local attorney and ask that they petition the court for you to act as administrator of the estate given what she's done and doing

 

I think that the threaqt of #1 should put the fear of God in her and she should give you any and all information you want.

Law Pro, Attorney
Category: Estate Law
Satisfied Customers: 23751
Experience: 20 years experience in estate and trust planning, probate, and wills
Law Pro and 4 other Estate Law Specialists are ready to help you
Customer: replied 5 years ago.
Just one quick question. If he signed a "pay on death" authorization in her behalf does that keep the cash in the bank accounts from going into the estate and leave it in her control?
Expert:  Law Pro replied 5 years ago.
No, they are part of the estate - but payable to her - but potentially that can even be disputed.

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