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The Estate Planning & Probate Litigation Blog

Jan. 17, 2024

Understanding the Rights of Survivorship for Parties on Jointly Held Bank Accounts

By Robert H. Brunson


Sometimes loosely called a “poor man’s will,” joint bank accounts with rights of survivorship may play a significant role in the distributions of the assets of a decedent. These accounts offer a convenient way for individuals, often couples or family members, to manage their finances jointly and ensure a smooth transfer of funds upon the death of one account holder. But it is important for a person who adds another individual to an account to understand the potentially unforeseen consequences to his or her overall estate plan. And it is also important for administrators and beneficiaries of an estate to understand their rights to seek a recovery for assets held jointly with third parties where the testator did not intend transfer the joint account to the third party upon death of the testator.

Understanding Joint Bank Accounts:

Joint bank accounts are financial accounts owned by two or more individuals who have equal access to the funds within the account. There are several types of joint bank accounts, including joint tenants with rights of survivorship (JTWROS), tenants in common (TIC), and tenants by the entirety (TBE). This article will focus on JTWROS accounts.

Rights of Survivorship Explained:

Under the Uniform Probate Code, which has been adopted at least in part in 18 states (including South Carolina), the right of survivorship refers to the automatic transfer of ownership of a jointly held bank account to the surviving account holder(s) upon the death of one account holder. This means that when one account holder passes away, the funds in the account are not subject to probate but are instead transferred directly to the surviving account holder(s).

The Uniform Probate Code (UPC) and Joint Bank Accounts:

The UPC provides guidelines regarding the rights and responsibilities associated with joint bank accounts. It recognizes the importance of survivorship rights and aims to streamline the transfer of funds to the surviving account holder(s) without the need for probate.

  1. Right of Survivorship by Default: Generally, joint bank accounts are presumed to have rights of survivorship unless otherwise specified. This means that if no specific language is included in the account agreement indicating a different intention, the surviving account holder(s) will automatically assume ownership of the funds.
  2. Clear and Express Intent: The UPC emphasizes the importance of clear and express intent when establishing joint bank accounts. If the account holders intend for the account to have rights of survivorship, it is crucial to include specific language in the account agreement to reflect this intention.
  3. Presumption of Equal Ownership: Under the UPC, joint bank account holders are generally presumed to have equal ownership rights unless stated otherwise. This presumption ensures fairness and equal distribution of funds in the absence of contrary evidence.
  4. Creditor Claims and Medicaid Eligibility: In some cases, joint bank accounts may be subject to creditor claims or affect an individual's eligibility for Medicaid benefits. The UPC allows for these situations to be addressed appropriately, taking into consideration the intent and circumstances surrounding the joint account.

Potential Pitfalls

Account holders, as well as interested beneficiaries, should be aware of certain unintended or unforeseen consequences of jointly held accounts. First, it is not uncommon for a person late in life (let’s call her Mrs. Elder) with some physical or mental impairments to add a trusted relative or caretaker (Miss Helper) to an account for convenience in money management and payment of bills. Mrs. Elder may not intend for the account to belong to Miss Helper when Mrs. Elder dies, and instead Mrs. Elder may intend for the jointly held assets to pass through Mrs. Elder’s estate. In some states, however, Mrs. Elder’s true intent may be thwarted if she does not take the proper steps to specify that the joint account is to pass under her will and not to Miss Helper. The law presumes in the absence of evidence to the contrary that Mrs. Elder intends for the assets in the joint account to pass to Miss Helper, rather than under Mrs. Elder’s will.

Under the Uniform Probate Code (“UPC”), to avoid the presumption that the joint account will pass to Miss Helper, Mrs. Elder is required to file a writing with the bank where the account is held at the time she creates the account expressing her intention. She should also have a clear and convincing provision in her will indicating that the assets in the jointly held account are to pass under her will.

An instructive case in South Carolina is Abernathy v. Latham, 545 S.E.2d 848 (Ct. App. 2001). In that case, evidence demonstrated “that the purpose of the accounts was to provide for decedent's healthcare needs during her lifetime. There was also evidence that at the time of the execution of her will, decedent intended to split her estate between two other beneficiaries who were not joint owners of the account.” Id. at 851. Because she executed her will 10 years after creating the joint accounts, the court held that the proceeds should pass to the joint account holder, rather than to the beneficiaries under the will. The court ruled against the beneficiaries and in favor of the surviving account holder primarily because the deceased account holder failed to indicate at the time the account was created her intention for the account assets to pass under her will. The court also found the deceased account contributor failed to specify in the will she executed 10 years after opening the account that she intended to include the account assets in her probate estate. The court found that the plaintiff beneficiaries failed to meet their burden of overcoming the presumption in favor of the joint account holder by clear and convincing evidence See also Est. of Chappell v. Gillespie, 327 S.C. 617, 626, 491 S.E.2d 267, 272 (Ct. App. 1997) (“[E]vidence of the testator's intent to alter the right of survivorship must be found in the will, not in the testimony of third parties about their perceptions.”).

Some states, however, include a jointly held account in the estate of a deceased if a plaintiff proves the deceased account holder did not intend to make a gift and instead intended for the surviving account holder to have access to the account merely for convenience. See McLaughlin v. O'Brien, 98 Mass. App. Ct. 1108, 152 N.E.3d 1158 (2020) (“Where a joint account is created merely as a matter of convenience, however, the naming of such additional account holder does not manifest an intent to make a present gift.”). Notably, while Massachusetts has adopted the UPC, it has not adopted the provisions of the UPC which address multi-party accounts and which create a presumption of survivorship, such that a non-contributing owner of a joint account would receive the assets from the account upon the death of the account holder and those assets would be deemed non-probate. See Unif. Prob. Code, Part 2 (Uniform Multiple-Person Accounts Act) (1989/1998).


Jointly held bank accounts with rights of survivorship provide individuals with a convenient and efficient way to manage their finances and ensure a smooth transfer of funds upon the death of one account holder. The UPC establishes guidelines to govern these accounts, but not all states have adopted those provisions of the UPC. By understanding the rights of survivorship associated with joint bank accounts, individuals can make informed decisions and effectively plan their estates, ensuring financial security for themselves and their loved ones, and avoiding potential probate litigation after their death. It is advisable to consult with a legal professional to navigate the intricacies of estate planning and the applicable law in your specific jurisdiction. For beneficiaries of a probate estate who are concerned that assets may have passed wrongly to a non-contributor of a jointly held account, remedies — such as a claim for Intentional Interference with Inheritance, unjust enrichment, or for a constructive trust — may be available, depending upon the facts.

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