11. ESTATES, TRUSTS AND PROBATE

Question:
What is the difference between probate and administration?

Answer:
Probate refers to the process by which the Surrogate’s Court takes proof as to the validity of a will of someone who has died and appoints an executor.

Administration refers to the process by which the Surrogate’s Court takes proof from a next-of-kin, if any, of the person who has died and appoints an Administrator as fiduciary to handle the decedent’s estate when there is no valid will.


Question:
Are there any disadvantages to having a joint bank account with right of survivorship?

What are the differences among a joint account with right of survivorship, a joint account as tenants-in-common and a convenience account?

Answer:

While it is simple and convenient to have two names on a bank account, the parties need to be aware of their rights. In a joint account with right of survivorship (JTROS), or where the parties are married, the survivor automatically inherits the entire account without the need for probate or other court approval.

During the lifetime of both parties, each is entitled to one-half of the account, but either one could withdraw the entire balance at any time. In that case, the withdrawal of more than one-half of the account – if done without the consent of the other owner – is improper and the other owner could demand the money returned. Such a withdrawal also could subject the person who took more than his or her share to a claim by the estate of the co-owner after death for return of the excess taken.

There are two other types of joint accounts: tenants-in common and convenience accounts. These are very different from JTROS. Tenants-in-common do not inherit the balance on the death of the co-owner, but rather one-half of the account goes to the deceased owner’s estate. Convenience accounts are not true joint accounts. They sometimes are set up with two signatories, but the funds belong only to one owner, and the other acts merely as the agent to sign checks or make simple transactions on behalf of (for the convenience of) the true owner.