When the holder of a joint survivorship account dies, ownership of the account typically transfers automatically to the surviving account holder(s) through the right of survivorship. But what if that wasn’t what the decedent actually intended?
In some cases, the survivorship designation may have been added under questionable circumstances.
Perhaps the surviving account holder pressured the decedent into adding them to the account.
Perhaps the decedent lacked the mental capacity to fully understand what they were doing.
Or perhaps the decedent later created a will or trust that directly contradicted the survivorship designation.
Whatever the specifics, one thing is clear: Just because a right of survivorship was added to a bank account, it does not always mean the decedent intended for the survivor to inherit the funds outright.
It’s not uncommon for joint survivorship accounts to be created for convenience, such as to help an elderly account holder manage bills or access cash. In such situations, the right of survivorship may not reflect the decedent’s true testamentary intent.
However, the convenience of joint accounts is also what can make them challenging to dispute after death. If a survivorship designation was never revoked, the surviving account holder(s) typically retain full access to the funds. Unlike solely owned accounts or payable-on-death (POD) accounts with beneficiary designations, joint accounts with rights of survivorship are not frozen upon death — rather, the funds remain available to survivors as if nothing changed.
This seamless access can lead to significant complications. For example, if the survivorship designation was invalid or added under suspicious circumstances, the funds may already be significantly depleted or even exhausted by the time legal action is taken. In some cases, the surviving account holder may suspect their right to the funds could be challenged and act quickly to drain the account before that happens.
As a result, litigation to challenge ownership of a joint account with the right of survivorship often becomes two-pronged. It may entail:
- Challenging the survivorship designation itself; and
- Attempting to recover funds that may have already been spent.
And even if you win, the recovered funds might need to pass through the probate process, adding another layer of complexity to the case.
It’s completely understandable if all of this feels overwhelming — because it is. But the good news is that you don’t have to navigate it alone.
With the right probate attorney in your corner, you can focus less on the legal maze and more on the outcome you’re seeking. An experienced attorney can assess whether a joint account with the right of survivorship is able to be challenged and help you craft a strategy tailored to the facts of your case, your desired outcomes and budget.
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What Does the Right of Survivorship Mean on a Bank Account?
If a joint bank account has survivorship rights attached to it, it means full ownership of the account will typically transfer automatically to the surviving account holder(s) when an account holder dies.
This transfer occurs outside of probate — which is one of the primary reasons account holders opt for a survivorship designation in the first place. Bypassing probate can help save time, money and headaches.
It’s important to understand how joint survivorship accounts are treated after death compared to solely owned accounts. Solely owned accounts without a designated beneficiary generally must go through probate before the funds can be distributed. Even POD accounts, which usually bypass probate, may freeze access to funds until the named beneficiary comes forward to claim them.
In contrast, joint accounts with a right of survivorship allow the surviving account holder to retain uninterrupted access to the funds. While banks typically require formal notice and documentation of the deceased account holder’s death, they do not usually freeze the account during this process, allowing the survivor(s) to continue using the funds in the meantime.
This ease of access is one of the main conveniences of joint accounts, but it’s also what makes them complicated to challenge after death.
Types of Survivorship Accounts
There are two primary types of survivorship accounts that are relevant at death. One is broadly available to all adults, regardless of relationship. The other is more limited and applies only to married couples or registered domestic partners in certain states.
Joint Tenancy with Rights of Survivorship
Joint tenancy with rights of survivorship is a form of title available to any two or more adults. When an account is held by joint tenants, the right of survivorship is usually implied — meaning that when one account holder dies, their interest passes directly to the surviving account holder(s). With a joint tenancy, withdrawals aren’t limited to account holders’ individual contributions — any account holder is entitled to access the full balance.
Suppose four siblings co-own a business and share a joint bank account as joint tenants. Each holds a 25% interest in the account during their lifetimes. When one sibling passes away, their 25% share does not go to their estate; instead, it automatically transfers to the surviving co-owners. As a result, the account’s ownership is then divided equally among the three remaining siblings.
That said, ownership structure isn’t necessarily permanent. If one sibling opts to sever the joint tenancy — for example, by withdrawing their share or requesting a change through the bank (which may require the consent of all the account holders) — the account may convert to a tenancy in common.
Under a tenancy in common, each co-owner holds a distinct and transferable share of the account. This means their interest will pass through probate upon death, and they may leave it to someone other than the surviving co-owners. With that being said, tenancy in common accounts are rare and may not be offered by all banking institutions.
Community Property with Rights of Survivorship
Joint accounts titled as community property with the right of survivorship are only available to spouses or registered domestic partners who live in community property states, such as California.
In community property states, most assets acquired during marriage are considered equally owned — even if one spouse earned or contributed more. When a bank account is titled as community property with the right of survivorship, both spouses own a 50% share of the account during the marriage or in the event of divorce.
Upon death, however, the deceased spouse’s 50% share does not go to their estate. Instead, it automatically transfers to the surviving spouse, avoiding probate.
Suppose a woman brings a substantial separate savings account into her marriage. If she wants to formally convert it into community property with the right of survivorship, she would need to “transmute” the character of the account from separate to community property.
It’s important to note that formally converting separate property to community property — a process known as transmutation — usually requires a signed writing or a transmutation agreement. This legal document confirms the spouse’s intent and consent to change the character of the asset.
When Can a Right of Survivorship Bank Account Be Challenged? — 7 Legal Grounds
A survivorship designation isn’t always final. With evidence of contrary intent and guidance from a skilled attorney, overturning the designation is more than possible.
This is often easier said than done. Courts generally honor a decedent’s express wishes — especially if the account was clearly set up to bypass probate — unless compelling evidence suggests those wishes don’t reflect their true intent.
Below, we explore the most common — and effective — grounds on which to challenge a survivorship designation on a bank account.
1. Undue Influence
Undue influence occurs when someone exerts excessive pressure, manipulation or coercion over another person, causing them to act against their own free will or best interests. If there’s credible evidence that an account holder was unduly influenced when adding a survivorship designation, the designation may be invalidated.
Example:
A mother had consistently told her children they would inherit equal shares of her estate. After a terminal diagnosis, one son moved in with her under the guise of caretaking, isolating her from her other children and coercing her to add him as a joint owner with rights of survivorship on a bank account with substantial funds.
When she died, the account bypassed probate, passing solely to him. In this scenario, the siblings would have grounds to challenge this outcome by proving their mother added their brother as a joint owner due to his undue influence and invalidating the survivorship designation.
2. Fraud
Fraud involves intentional deception for personal gain. If someone is misled into creating a joint account with survivorship rights, that designation can be overturned based on fraud.
Example:
A child is designated as the attorney-in-fact for their parent under a power of attorney and convinces the parent to sign documents authorizing them to access the parent’s bank account, with the stated intention of helping the parent pay bills and manage finances.
However, instead of simply acting as the attorney-in-fact, the child uses these documents to add themselves as a joint account holder on the bank account. By doing this, the child becomes a co-owner of the account with rights of survivorship, meaning they can claim the funds outright upon their parent’s death.
This intentional act of deception may constitute fraud and serve as grounds for the beneficiary of the account in the parent’s will to challenge the survivorship designation.
3. Lack of Capacity
Creating or modifying a bank account is a contractual act requiring mental competence. If it can be proven an account holder lacked the capacity to understand the implications of a survivorship designation on a bank account, it may be declared invalid.
Example:
A man with advanced Alzheimer’s disease visits his bank to add survivorship designations to his bank accounts. However, his physician had already declared him legally incapacitated, and a conservatorship petition was pending to manage his care.
After the conservator is appointed, they challenge the survivorship designations, arguing that the man lacked capacity at the time they were made. The challenge is supported by medical records and testimony from his physician — and ultimately, the court rules in the conservator’s favor.
4. Improper Execution
If a bank fails to follow its own procedures when establishing a joint account with survivorship rights or modifying an existing account to include survivorship rights, the designation may be overturned due to improper execution.
Example:
After a mother dies, her daughter finds that a cousin is listed as a joint owner on her bank account, despite the mother’s will leaving everything to her children. The signature adding the cousin is typed, and the bank never verified the mother’s ID. These irregularities suggest the process was not properly executed, supporting a potential challenge to the account’s ownership.
5. Mistake
A survivorship designation made in error can be invalidated if it clearly contradicts the account holder’s true intentions.
Example:
An elderly aunt intends to add her niece to her bank account as a POD beneficiary but mistakenly signs forms to create a joint account with survivorship rights. The niece then exploits the account by withdrawing all of the money, leaving the aunt unable to cover medical expenses and other necessary costs.
By proving the joint account with rights of survivorship was created by mistake, the power of attorney is successful in invalidating the survivorship designation and recovering the funds from the niece.
6. Contrary Intent
If there is clear and convincing evidence that the account holder intended something different from what the survivorship designation implies — i.e., there is contrary intent — the designation can potentially be invalidated.
Under California Probate Code section 5302:
“Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent.”
Takeaway: What It Takes to Successfully Challenge Joint Accounts with Rights of Survivorship
Challenging a joint account with right of survivorship is possible but requires legitimate grounds and supporting evidence. You must be able to demonstrate that the designation doesn’t reflect the decedent’s true intentions, whether due to undue influence, fraud, lack of capacity, improper execution, mistake — or more simply, contrary intent.
“Joint bank accounts with rights of survivorship can be difficult to contest, especially if the funds have already been accessed or spent after the account holder’s death,” says Roee Kaufman, a partner at Keystone Law Group. “That’s why it’s critical to consult a probate attorney with experience in litigating property disputes as soon as you become aware of a questionable designation. An early legal evaluation can make all the difference in building a strong case and identifying the right strategy moving forward.”
Clear and Convincing Evidence
The strongest basis for a challenge is clear and convincing evidence of contrary intent. This could include estate planning documents, consistent family testimony or medical records.
An experienced attorney can help gather, analyze and present this evidence effectively.
Flexibility With Resolution Options
Litigation isn’t the only path. Many cases resolve through mediation, where parties can reach mutually acceptable outcomes outside of court without a trial. This option is often quicker, less expensive and more flexible.
Skilled Legal Representation
Overturning a survivorship designation is legally complex. A qualified probate attorney can navigate the challenges, handle court proceedings and pursue recovery of misappropriated funds on your behalf. With skilled legal counsel by your side, you can approach your claim strategically and confidently.
FAQs: Right of Survivorship on Bank Accounts
Still confused about the right of survivorship on joint bank accounts, or what it takes to challenge it after an account holder’s death? Explore the frequently asked questions below for additional clarity.
If you require guidance tailored to your specific situation, we encourage you to reach out to our probate firm.
What is the difference between a survivorship account and joint account?
A survivorship account is a type of joint account — specifically, an account where ownership automatically transfers to the surviving co-owners upon death.
On the other hand, a joint account, broadly speaking, may either be:
- Joint tenancy with the right of survivorship (probate is bypassed), or
- Tenancy in common (no automatic transfer; probate is required).
So, not all joint accounts are survivorship accounts, but all survivorship accounts are joint accounts.
Do all joint bank accounts have rights of survivorship?
No, not all joint bank accounts include rights of survivorship — it depends on the actual title and language used when the joint account was created. A joint account typically only includes rights of survivorship if survivorship language was explicitly included in the document establishing the account.
While a joint tenancy typically includes survivorship by default, tenancy in common does not.
How do I know if I have the right of survivorship on a bank account?
In general, if you’re a joint owner of a bank account with a right of survivorship, you would have been required to sign specific forms and provide personal information when the account was opened.
The account agreement will usually clearly indicate if survivorship rights are included. If you're unsure, request a copy from the bank to confirm.
What happens if no survivorship designation is included on a bank account?
If a bank account lacks a survivorship designation, its fate depends on how it’s titled:
- Sole ownership: The account will go through probate and pass according to the terms in the decedent’s will (if a valid will exists) or intestate succession laws (if no valid will exists).
- Held by trust: The account passes according to the trust terms, typically avoiding probate.
- Tenancy in common: The deceased’s share passes through probate to their estate.
- Beneficiary designation (POD/TOD): The account passes directly to the named beneficiary, typically bypassing probate.
Keep in mind that even if a bank account is held by the decedent’s trust or has a beneficiary designation, court involvement may be required if the trust terms or beneficiary designation is challenged.
Can joint tenancy with the right of survivorship on a bank account be severed?
Yes, a joint tenancy can typically be severed, but the process varies by bank. Some banks allow individual co-owners to sever the joint tenancy unilaterally; others may require all parties' consent.
Once severed, the account is usually converted to a tenancy in common, meaning each owner holds a distinct and transferable share that will pass through probate to their estate, not automatically to other co-owners.
How do bank accounts held as community property differ from those held as community property with the right of survivorship?
In standard community property accounts, each spouse owns 50%. Upon death, the deceased spouse’s share generally passes to their estate — usually through a will or probate — or a trust.
With community property with right of survivorship, the surviving spouse automatically inherits the deceased spouse’s share without probate being required.
Remember, it is only possible for married couples or registered domestic partners to title property as community property, regardless of whether it carries the right of survivorship.
How do survivorship accounts compare to transfer-on-death accounts?
Both account types bypass probate if uncontested, but they differ in how and when ownership transfers:
- Survivorship accounts: Surviving co-owners automatically assume full ownership upon death. All co-owners can use the account during their lifetimes.
- Transfer-on-death (TOD) accounts: The named beneficiary receives the funds only after the original owner’s death. They cannot access the account while the owner is alive. There also may be a waiting period before the beneficiary can claim the funds in a TOD account.
How is a multiple-party account with rights of survivorship handled at death?
When a co-owner of a multiple-party survivorship account dies, their share is automatically divided among the surviving co-owners.
Suppose six people share a joint account with rights of survivorship and one dies. The remaining five will now equally share the entire account — each owning 20%. If the account is later severed, each co-owner would own a fixed 20% interest, which could be transferred or inherited independently.
Still confused about when right of survivorship bank account can be challenged?
Challenging a survivorship account — or confirming its validity — is a legally complex process requiring the guidance and expertise of a skilled attorney. Our probate attorneys are here to help you determine your rights, gather necessary evidence and represent your interests effectively in or out of court. Call our firm today to learn how we can help.
