Probate question.

[TNDemo]

If someone makes someone else a co-signer on their accounts so they become joint so as to avoid probate, what do people with a claim on the estate do?

[sui generis]

1. same thing the IRS does:

they can put it in probate anyway and force you to show contractual proof that you own a stated percent or are accountable for income/expenses on the account, and deliver the accounting ledgers and statements and otherwise force you to prove that it wasn't a fraudulent conveyance.

They can make it ugly if they want.

[TNDemo]

2. I was asking because I have a claim on an estate

and probate has not been filed yet and it case it does not get filed I was wondering what my recourse was.

[sui generis]

5. who is the primary on the account?

and, is there more than $5000 in the account?

Also, what was the purpose of having both of you on the account together?

If the account survives without going into probate, it's basically yours, but you will still need to be prepared to defend your stake in it, particularly if you have been depositing your own money into it and not just acting as a guardian or administrator (i.e., a housekeeper or nanny sometimes can write checks, which does not necessarily make her or him a beneficiary).

[TNDemo]

6. I'm not on it at all.

I have a claim to what he owes me. I was thinking he may have made someone else joint so it would become theirs on his death and thereby avoid probate.

[sui generis]

7. OH! in that case submit your claim it to probate

absolutely. Even if he did make someone else joint on the account then if he did it to get out of paying you what he owed you it was a fraudulent conveyance.

Probate will shake it down.

[Lex]

3. If the property is "jointly" owned, then 50% is presumed to be the

the property of the deceased, isn't it? That percentage is still subject to claims during the probate period.

Jointly owned doesn't always means that it is jointly owned with survivorship rights. In other words, at the death of the co-owner, it's not necessarily true that the co-signer now owns the whole account.

[TNDemo]

4. There is no property - it's just cash in the bank.

If I wanted to file a claim, who would I do it with?

[Lex]

8. Cash *is* property.

File the claim against the estate, and with the executor of the estate. All that info should be in the paper that publishes your city's probate announcements.

[TNDemo]

10. It would be there if probate were filed.

Problem is it hasn't been filed and may not be filed.

[Floogeldy]

9. In my state, any creditor can file and commence a probate . . .

. . . or intestate (died without a will) proceeding concerning a decedent that owes them money. If the amount owed to you is significant enough, you should contact a lawyer in Tennessee about starting the proceeding yourself.

However, "joint tenancy w/right of survivorship" property is not probate property in some states, because full title in the property vests immediately in the survivor at the moment of the other joint tenant's death. Therefore, you might probably have to establish extraordinary circumstances before a court would allow you to get your money out of that account. One poster suggested fraud. That might work. Another theory may be to get the court to deem the funds an "equitable trust" for your benefit.

I had a case where a decedent put all of his money in joint tenancy with one daughter and instructed her to split it with his other daughter upon his death. The daughter in joint tenancy refused to split it with her sister (she also lied and committed fraud)! I brought suit and proved by clear and convincing evidence that half of the funds were being held in trust for my client.

Bottom line, consult a lawyer in your state.