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Are checking accounts and CDs considered "residuary estate?"

1 Answers. Asked on Jul 29th, 2011 on Wills and Probate - Tennessee
More details to this question:
We were told by a lawyer in Chattanooga that all checking accounts and CDs that are in the executors name (as well as deceased''s name) belong to the executor and are not part of the estate if not explicitly mentioned in the will. The will speaks of a residuary estate, however, and explicitly states that the residuary estate should be equally divided between heirs. Are not CDs and checking accounts residuary estate?
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Answered on Aug 23rd, 2011 at 3:26 PM

Use of the term Executor may be what is confusing this issue. Let me try to clarify a couple of things for you.

First, when one person and any other person(s) own property jointly, for instance CDs and checking accounts, the property is usually titled as being held in "Joint Tenancy with Right of Survivorship." All that means is that both parties own the property together and when one owner dies the other becomes the sole owner of that property regardless of whether the property was listed in a Will, or even if there was no Will.

*This would only not apply if there is some sort of proof that the titling was not meant to give ownership of the property to the surviving joint tenant but instead, was solely for some sort of convenience. Example: Do you have proof that instead of naming a power of attorney to pay the deceased's bills when alive, the deceased had simply set up a person on the bank account in order to pay them?

Second, an Executor is the person appointed by a court to administer the estate of a person who has died leaving a Will. The original Will nominates the person as Executor for the job of carrying out the instructions in the Will. When processing the Will in a probate proceeding, the court must officially appoint the Executor. So, you can see that there is no actual Executor until someone has died and a Will has been probated.

Third, a person can be both a Joint Tenant and also an Executor because they are separate functions. Being the Executor does not mean that a person must give up joint ownership of property, or share the property with others who may be inheriting under the Will for which he or she is Executor.

Finally, a Will only controls property that is titled in the decedent's name, alone. Property that is titled joint with rights of survivorship or is made payable on death to another person, is not subject to the terms of the Will unless it is proved that the titling is an error.

I am answering this way because without further detail, your description of the situation sounds like the Executor may also own the CDs and bank accounts jointly with the deceased. It is possible, however, that the CDs and bank accounts were set up this way simply for convenience when paying bills or handling business or financial affairs of the deceased while he or she was still living. That would add a different layer of complexity.

You should certainly visit an attorney licensed to practice in Tennessee to ask for clarification and get specific instructions for handling any follow up activities.

To your success,

Gale Allison, Principal Attorney
The Allison Firm, PLLC
Tulsa, Oklahoma 

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