State probate laws generally govern the distribution of a person’s property when that person dies. A common asset is a bank account. How the money in the account passes to an heir depends on several factors, such as the language in the decedent’s estate plan (if any) and whether the account is probate or non-probate property.
Estate Plan Governs
The decedent’s estate plan governs what happens to most of his property. For example, if your husband leaves a will and it states that he wants to give the money in his savings account to his cousin, Eddie, then Eddie gets the money in that particular account. If the estate plan is silent with regard to the bank account, the matter may depend on the type of account. Depending on how the account is managed -- jointly, solely or by some other arrangement -- the money in the account may be probate or non-probate property.
Joint accounts are non-probate property. The decedent’s estate plan does not control the disposition of this type of asset, and probate is not required for the asset to lawfully pass to the beneficiary. If you and your husband owned a joint account, the money in the account would pass automatically to you when your husband died. As a general rule, the will has no control over non-probate property; even if your husband intended to give the joint account to another beneficiary, as long as the account remains joint property -- and thereby non-probate property -- the named beneficiary on the joint account receives the money.
There is a different result for solely managed accounts. Probate property is generally any asset owned solely by the decedent at the time of death. A sole bank account is probate property. If the decedent did not make a specific gift regarding the bank account, it will most likely become part of the estate’s residue. The estate residue is the property and assets that remain after all the specific bequests are distributed.
Another potential situation is a pay-on-death (POD) account. POD accounts are like joint accounts in that they pass by operation of law; probate is not required. The account could have been held solely in the decedent’s name but with a named beneficiary, such as his grandson. When the decedent died, the account would pass automatically to the grandson. The specifics regarding bank accounts, estates and estate plans depend on individual facts and circumstances. Readers with specific questions should seek independent advice from a legal professional in their area.