Joint Bank Accounts and Right of Survivorship in Florida
It is very common for the owner of a bank account to “add” someone to his/her account for personal convenience. Often times, the owner does this so that the added individual will have access to the funds for the benefit of the original owner. The person added is often times the original owner’s child, sibling, caregiver, or trusted friend.This is especially common if the added person is already assisting the original owner with managing their bank account or paying bills. Setting up an account this way may be convenient for the original owner during his/her lifetime, but it can lead to very inconveninent disagreements upon the death of the original owner regarding who inherits the bank account.
This often occurs because when adding an additional person to his/her bank account, the original owner may not realize his/her actions can have impliactions related to the survivorship rights associated with the account. This may happen because the original owner already has a last will and testament, or other testamentary document (such as a trust), that spells out how his/her assets will pass after death. What happens if the original owner’s last will and testament leaves all his bank accounts to all three of his children, but because two of his children lived out of state, he put his one local child as a joint owner on his bank account. Unfortunately for the other two children, even if this was truly their father’s intent, Florida Statute Section 655.79, provides that unless expressly stated otherwise in the contract, agreement or signature card executed in connection with the relevant account, any account that is titled in the names of two or more persons creates a presumption that all ownership rights in the account automatically pass to the surviving owners upon the death of any owner. The statute does not list any explicit words that are required for this presumption to arise. All that is required for the presumption to arrise is the presence of two or more owners. What is more, the inclusion of the word “or” between the names as opposed to “and” makes no difference in whether the presumption arises.(1) An account owner’s will or trust will not prevent this presumption from arising, and the financial institution has no duty to inform the account owner of this presumption, neither when the additional owner is being added, nor at any time thereafter. This means that the surviving owner can simply walk into the bank after the original owner’s death and withdraw all of the funds as their own.
Typically, the person with standing to file a legal proceeding to rebut this presumption is the estate’s personal representative, who is often times, for the sake of convenience, also the very person who was listed as the additional account owner. In other words, a person who may have a vested interest in not challenging the presumption. But, even where the presumption is challenged, it is a difficult test. The survivorship presumption can be overcome only by proof of fraud or undue influence.(2) Fraud can arise in certain situations where the survivor used deceit or other fraudulent means to cause his/her name to be added to the account. An undue influence claim may arise where the surviving owner took advantage of a person with a diminished mental or physical capacity, had a close personal relationship with the decedent, and was very active in procuring the addition of his/her name to the account. An example of this is when a person takes all necessary steps to cause his/her name to be added to the account, including taking an elderly person who was suffering from dementia to the bank and tells the bank employee that the account owner wants to add the influencer to the account. However, merely driving the decedent to and from his bank, without more, is insufficient evidence to establish to the presumption of undue influence.(3)
The circumstances that result in the survivor’s name being added to the account do not usually give rise to a claim of fraud or undue influence because the original owner very much intended to add the person to the account. The problem is, he/she may not have intended to convey any ownership rights or survivorship rights to the added owner. The addition of the joint owner may truly have been done merely for the sake of convenience. In this situation, Florida law shifts the burden of proof to the estate of the original owner to prove, by clear and convincing evidence, that survivorship was not intended.(4) It can be very difficult to prove that the original owner did not intend the funds to pass because it usually is one side’s biased testimony against the other side’s equally biased testimony. Sometimes, the party challenging the survivorship rights argues that intent of survivorship rights is disproved by virtue of the fact that he/she can prove the original owner did not intend to make a gift of the bank account to the joint owner at the very moment he/she added him/her to the account. But even if this is proven, it is not enough. The lack of intent on the part of the original owner to make a present gift to the surviving owner when the survivor is added to the account is not enough evidence, under Florida law, to overcome the presumption that survivorship rights were intended.(5) In the absence of a clear statement, whether oral or written, by the deceased or other evidence of a contrary intent based upon testimony from the attorney who prepared the deceased’s estate planning documents, a bank employee, or a person with special knowledge regarding the decedent’s estate plan, it will be difficult for the challenger to prevail in this type of case.(6)
Given the difficulty in overcoming this presumption, account owners may want to consider alternatives to joint bank accounts that still allow for the convenience of granting a trusted friend or family member the right to access the funds. These alternatives are important considerations, especially once you understand that the main objective of the joint account statutes in Florida is not to carry out the true intent of the decedent, but to protect banks from liability to the decedant owner’s heirs. Some alternatives include:
- the account owner can appoint an agent to act on his/her behalf under a Durable Power of Attorney (however, this is only a convenient option if the Durable Power of Attorney is honored by a bank, therefore it is important the document be properly drafted and executed by an experienced attorney);
- an owner can create a statutory convenience account as the principal and designate someone else as his/her agent (often designated at the financial institution as “POA”) with limited authority to deal with the account;(7)
1 See In re Estate of Herring, 670 So. 2d 145 (Fla. 1st DCA 1996).
2 Fla. Stat. § 655.79(2).
3 See Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994).
4 Fla. Stat. § 655.79(2).
6 In re Estate of Combee, 601 So. 2d 1165 (Fla. 1992).
7 Fla. Stat. § 655.80.