Question re bank account and deceased parent

finbarrk

Hi, can anyone tell me is a sibling entitled to withdraw money from a bank account that was jointly held by one of their now deceased parents and the sibling in question? This would be before the will has been read.

Claire McCarthy Cork

You won't be able to get advice about that without discussing the bigger picture with a legal advisor... but a few facts that may be helpful:

The intention of both parties when the joint account was opened is relevant. Who provided the funds? Was it intended to allow the son/daughter of the deceased joint account holder to inherit the money without having to deal with probate? Was a declaration to this effect made by the deceased? Or was the money in the account really intended to remain the deceased's property, and the son/daughter became a joint account holder for the sake of convenience when their parent was too old and frail to go to the bank themselves? In that case, you would have what is called a resulting trust, which means that the surviving account holder is not entitled to take the money, rather it should go into the estate and be divided by the executor.

The Revenue Commissioners explain the concept in the context of the succession tax form (the CA25/ Inland Revenue Affidavit):
"Resulting Trust (see footnote to Question 1)
Where the presumption of a resulting trust arises, property, although held jointly, will not pass automatically to the survivor but will revert instead to the estate of the deceased to be distributed according to the will/intestacy.

In cases where money is placed in the joint names of the disponer and somebody else, there is a presumption in law that a resulting trust exists in favour of the person who provided the funds. This means that it is legally presumed that the portion of the money provided by the deceased in the account forms part of the deceased’s estate and does not automatically go to the other account holder(s). Where the surviving account holder claims title by way of survivorship, the onus of proving that the joint property should pass by survivorship rests with the survivor. The presumption of resulting trust, being only a presumption, can be rebutted by evidence of a contrary intention on the part of the person who provided the funds or by a presumption of advancement."

The use to which the survivor intends to put the money would also be relevant. Is this for funeral expenses, or for a new bathroom? Relationships with other beneficiaries and with the executor would have to be taken into account. Is it appropriate and agreed by everyone that this money be applied to funeral expenses, or is that someone else's job? Who is the executor? If one of the beneficiaries or the executor is likely to object, then the survivor might be well advised to wait for probate.

...this one really all does depend on the circumstances.

Hope that helps.

Claire

finbarrk

Thanks Claire for your helpfull reply.