Legal Question in Wills and Trusts in Florida

Tod/pod designation
My father deceased left the following items:

(1)a joint checking (with new spouse) and pod designation with others -spouse alive
(2) an annuity (with new spouse) and my brother and I as beneficiaries - not sure if it's fixed annuity? Not sure if spouse is owner. We cannot get the copy of the contract
(3) a brokerage acct in joint name with my brother and I as beneficiaries.

Are my brother and I entitled to any of these items? It seems that the beneficiaries are not entitled to any of it and everything under the ''TOD''/''POD'' beneficiaries receive nothing? Does the joint ownership ''override'' these TOD/POD beneficiaries. Very sad state of affairs. Many thanks for any help or advise.

Asked on 6/30/04, 4:23 pm

2 Answers from Attorneys

Walter LeVine Walter D. LeVine, Esq.

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Re: Tod/pod designation

Taking them item by item, with some precautionary remarks:

1. Joint checking account with spouse (POD) only goes to others when father and spouse die. If the account is closed during either lifetime, the others get nothing.

2. Annuity- who gets depends upon type of annuity. It sounds like that after the survivor of father and spouse dies, you and your brother may get any residual value. However, this depends on longevity of father and spouse and what has been paid out. You will only get something if there is any remaining value. By this I mean, assume it is a fixed annuity for a term of years. Both father and spouse die before payment term expires. You and brother get any residual value. If either spouse survives the term, no residual.

3. Brokerage account will go to you and brother if not closed out by your father, or change of registration by him before he dies.

Yes, joint ownership overrides POD, with no assurance that POD beneficiaries will get anything.

I am not sure what your father was trying to provide here. If he was trying to preserve something for his children, while also providing something for the spouse as well, the children, except for the joint brokerage account appear to be at risk, as the joint checking account could be dissipated by the spouse, as surviving joint owner, and the annuity residual depends upon the type of policy. Depending upon what he was trying to accomplish (and there could be many possibilities) he may have done it improperly. It sounds like, at a minimum, he was trying to bypass probate, by the types of accounts and registrations. If he wanted to assure some income, and possible principal for the spouse, and still assure assets to his children, it could have been done better by using a trust, rather than the types of registrations he used. Not enough information to try to ascertain what he intended. You might want to talk to him about it, ascertain his intentions and then suggest some other plan, explaining the posssible risks involved in his current situation. On the other hand, if he wanted to assure the spouse be provided for, and only anything remaining go to the children, he might have done this properly.

Answered on 6/30/04, 4:40 pm

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