In advising clients regarding the rights afforded to joint tenants on a bank account, most practitioners would say that the agreement with the financial institution generally would control, with the surviving joint tenant succeeding to the funds remaining in the account on the death of the other joint tenant. California’s Multiple-Party Accounts Law (Prob. Code, §§ 5100, et seq.) governs ownership of accounts with multiple parties and the disposition of those accounts upon the death of one of the parties to the account. Probate Code section 5302, subdivision (a) provides, in pertinent part, that, “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 intent. (Prob. Code, § 5302(a).) Subdivision (c) further provides that, “A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.” (Prob. Code, § 5302(c).)
Like most estate planners, we always remind clients that tax and estate planning laws are subject to change and frequently do. As busy practitioners, it is impossible for us to reach out to every client when a change might affect him or her, so we remind all clients to come back to see us if they have questions or are concerned about how recent developments affect their plans (and in any event, at least every three to five years).
It is generally accepted that “personal property” refers to all property aside from real property. But in California, that isn’t always the case when it comes to making gifts of your property in a will or a trust. California courts actually look to the language used in a document making a gift of “personal property” or “personal belongings,” and sometimes to other evidence, to interpret the scope of property intended when using such a term in an estate planning document.
First, what is a contract to make a will?
A contract to make a will is exactly as it sounds. It is an agreement to provide for a person as part of a decedent’s will. The terms of the agreement could be as simple as a promise to provide services in exchange for a specific cash gift as part of a decedent’s will. For example, Elizabeth may promise to provide caregiving and household services to William in exchange for William’s promise to provide her with $250,000 upon his death. When William dies, hopefully his will has a provision leaving a specific cash gift of $250,000 to Elizabeth. If not, then there has been a breach of the agreement. The agreement can become substantially more complex, particularly when real property is the subject of the agreement. Instead of agreeing to pay Elizabeth $250,000 in exchange for her services, William may promise to leave his house to Elizabeth. Again, when William dies there may be a breach of the agreement if William’s will contains no provision instructing that his house be given to Elizabeth.
Thanks to Law and Order, we’re all familiar with the beginning of a person’s Miranda Warning: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” What many may not know, however, is that this is a right only afforded to those involved in criminal proceedings. In civil cases, there is no constitutional right to refuse to testify. Historically, this has been intended to ensure that our criminal justice system—which can deprive a person of their freedom, property, and even their life—remains accusatorial, not inquisitorial. A civil matter, on the other hand, is meant to resolve disputes between individuals and does not threaten the same consequences, so public policy favors bringing forth the information that a person’s testimony offers , even if it is against his or her self-interest.