PROBATE CORNER
PROBATE CORNER
Overcoming The Presumption Of Ownership Of A Convenience Account
DAVID M . GARTEN
A convenience account - § 655.79 , F . S . - enables a principal to deposit money and designate an agent with the right to make deposits and withdrawals on the account . In the event of the principal ’ s death , the statute contemplates payment of any balance in the account to the personal representative of the principal ’ s estate . The statute reads in relevant part : “( 1 ) Unless otherwise expressly provided in a contract , agreement , or signature card executed in connection with the opening or maintenance of an account ... a deposit account in the names of two or more persons shall be presumed to have been intended by such persons to provide that , upon the death of any one of them , all rights , title , interest , and claim in , to , and in respect of such deposit account … vest in the surviving person or persons ….( 2 ) The presumption created in this section may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent . In the absence of such proof , all rights , title , interest , and claims in , to , and in respect of such deposits and account … upon the death of any such person , vest in the surviving person or persons ….”
In Larkins v . Mendez , 2023 Fla . App . LEXIS 3311 ; 2023 WL 3485303 ( Fla . 3d DCA May 17 , 2023 ) defendant appealed the probate court order determining that a bank account shared with the defendant was a “ convenience account ”, such that , upon decedent ' s death , the balance of the account became an estate asset .
FACTS : Decedent died intestate in 2016 and his three sons were the estate ' s beneficiaries . Among decedent ' s assets was a bank account . In 2006 , decedent added defendant , his only son who lived locally , to this bank account . Decedent updated the signature card by checking the box marked " multipleparty account with right of survivorship " and both signed the signature card .
During administration of the estate , a disagreement arose as to whether the bank account was an estate asset - specifically a convenience account - subject to distribution among the three brothers . While there was a place on the signature card for the account to be designated as a " convenience account ," the " convenience account " designation box was not selected . Defendant contended that , immediately upon decedent ' s death , the proceeds in the account passed directly to him , rather than to the estate , because the bank account was maintained as a joint tenancy with right of survivorship .
Given the estate disputes , the probate court appointed a neutral personal representative ( PR ”). The PR sought declaratory relief as to the estate ' s rights to the bank account and for the imposition of a constructive trust over the account funds .
At trial , the probate court received , inter alia , the following evidence : ( i ) one of the decedent ' s other sons testified that his father told him the bank account would be split three ways , and that defendant was added to the account only to help his father pay bills and manage finances in his elder years ; ( ii ) defendant testified that he used the bank account funds for his father ' s care , that the funds in the bank account came from his father , and that he did not withdraw any funds for his personal use during his father ' s lifetime , depleting the account only after his father died ; ( iii ) decedent ' s neighbor testified that he visited decedent prior to his death , that they discussed the bank account , that decedent told him that he intended for the account to be split among his three sons after his death , and that the neighbor took contemporaneous notes of this conversation , which were admitted into evidence , and which expressly stated that , as to the account , defendant ’ s name was " put on for convenience ;" and ( iv ) records of the bank account that showed that
defendant made several large withdrawals from the bank account after his father passed away .
After the trial , the probate court entered an order , finding that , notwithstanding the bank signature card ostensibly establishing the account as a joint account with a right of survivorship , the bank account was a convenience account and , therefore , an asset of the estate . The order was affirmed on appeal .
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