Legal Question in Wills and Trusts in Virginia

Re: will and other assets

Here's two sections of the Virginia Code regarding joint accounts (certificates of deposit are within the definition of "accounts").

� 6.1-125.5. Right of survivorship. �

A. Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created. If there are two or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interests under � 6.1-125.3 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of survivorship continues between the surviving parties.

Virginia Code � 6.1-125.5

� 64.1-140. Duty of fiduciaries as to joint accounts. � A fiduciary charged with the administration of the estate of a decedent shall be under no obligation unless requested in writing by someone in interest, within six months from the date of the initial qualification on the estate, to assert a claim on behalf of the decedent's estate to any funds which may, at the time of his death, be on deposit in any financial institution in the name of said decedent and one or more other persons when the terms of the contract of deposit, or the laws of the state in which such funds are deposited, permit such financial institution to pay (1) to either of such persons, whether the other, or others, be living or not, or (2) to a named survivor or survivors.

The fiduciary, or his attorney, shall acknowledge receipt of such request in writing within ten days of receipt of such notice, and if the fiduciary be the same person as the surviving cotenant of such funds, said fiduciary shall segregate such funds, and place same in an interest-bearing account, awaiting an appropriate decree concerning the ultimate disposition of same, and said fiduciary-cotenant shall not use such funds for his own personal account.

If the fiduciary-cotenant accedes to the request that such funds be treated as estate funds, said fiduciary may distribute same according to law without any decree of court referred to above. (Code 1950, � 64-131.1; 1966, c. 600; 1968, c. 656; 1970, c. 425.)

Virginia Code � 64.1-140

Thus, the whole question is whether, at the time the CD was purchased, there was a clear intent not to create a survivorship interest, and you must raise that question with the executor within six months of the date of his qualification as executor.

Re: will and other assets

Your father is partially correct. The C/Ds are part of your mother's possible taxable estate, for death tax purposes, but not part of her probate estate covered by the Will. Only assets in your mother's individual name are subject to the Will (not jointly registered assets, insurance proceeds or retirement plan accounts with a named beneficiary) and will be the subject of the 1/3 division. C/Ds or other assets having a joint registration or beneficiary designation pass outside the Will and go to the person(s) named as the joint owner or beneficiary. The only exception to joint assets is if the asset was registered in 2 names solely for the convenience of the primary owner (e.g., an ill parent puts the name of a child who lives close on the account, so it can be accessed if the parent cannot get to it). This concept is difficult to prove unless there is some writing or other indication to verify that only an accomodation was intended.

Re: will and other assets

It's a tough question.

It all depends on what your mother intended. Were there some indications that she believed the CD's were hers or did she intend that they should go to your sister?

First, though, you have to look at the forms she signed when she set up the accounts. Was it joint tenancy or tenants in common? The bank will pay the former to your sister and the latter to the Executrix.

Did she make express mention of the CD's in the Will and if so, what?

Did she leave any documents to indicate how she wanted the accounts to go?

In the absence of any expression of intention, the accounts in joint tenancy will be retained by you sister and the accounts described as tenancy in common will be divided as provided in the Will.