Probate and joint bank accounts

daenerysstormborn3

I work in the legal sector myself but I'm looking for an insight from anyone who has ever dealt directly with the probate process. I am not seeking legal advice and I hope it's not perceived that way. There is already a solicitor involved in this matter (the deceased person's solicitor) and my own boss (a solicitor) has gotten involved to try to move things along.

The story is that my partner's father passed away in October. My partner spent 7 years before his father passed away looking after his dad and living in the house with him (and I was there for the last 2 years helping out also). Before he passed away he had been sick on and off for about 4 years (he was hospitalised on a number of occasions for 3-4 weeks at a time). When he was sick my partner's father made the decision to have my partner joined into his bank accounts. This gave my partner permission to withdraw money from the accounts to look after the house etc. when his father was in hospital for lengthy periods but it also gave him the same amount of power as his father over the account (although he never used it as such, he was lucky enough not to need to do so). I do understand that some joint accounts allow the second person limited powers with the account but this was not the case with my partner.

So when my partner's father passed away in October the bank accounts were frozen. As far as I understand though because the accounts were joint accounts all money should've been passed on at the time of his father's death under the "survivorship" rule. Does anyone know if I am incorrect and in fact the "survivorship" rule does not apply here? As far as I am aware the "survivorship" rule doesn't just apply to husbands and wives but applies to anyone with joint account status once they are family members, i.e. it doesn't apply to two friends but would apply to two brothers.

It is now 9 months later and these same bank accounts are still frozen. My partner has been playing go between for the accountant and solicitor for the past 2 months (they seem completely incapable of maintaining any sort of correspondence and my partner is forced to go into their offices anytime he wants an update on progress). About a month ago the accountant and solicitor began a process to unfreeze the accounts, stamping forms, sending them to the bank, the bank requesting letters from the solicitor, the solicitor then sending something to the accountant, the accountant then sending this to the bank, back and forth and around and around like a merry-go-round.

My partner went to the solicitor's office today (phone calls are never ever returned) and has an appointment arranged for next Monday (eventhough said solicitor only handles probate and conveyancing matters she is apparently extremely busy).

As it is we have significant maintenance to carry out on the farm (we have also lost 4 fields of hay) and house (it had fallen into disrepair before my partner's father passed away and has slowly gotten worse because we do not have the money to carry out any repairs). One of the things we desperately have to do with the house is have it insulated properly before Winter (it is an old farmhouse with no insulation whatsoever and is extremely cold in Winter) and have the septic tank flushed out, more minor things are replacing our oven, our dishwasher, our fridge and our shower which have all broken down in the last six months (they're all at least 8 years old). Aside from these matters, my partner would like to finally deal with both of his parent's personal belongings. His mum passed away nearly 8 years ago and both him and his father did not want to remove any of her belongings from the house as it was too painful for both of them but my partner feels it's time for him to try to move on now and he thinks this will help him. His father's car is also still at the house sitting idle for nearly 9 months now because he can't do anything with it as all the paperwork is still in his father's name. He would like to be able to sort through their things and separate anything he would like to keep from things that can be donated to charity maybe.

Basically I am just wondering about this "survivorship" rule and if anyone has any idea on how it works. I have stated above my understanding of it but please correct me if I am wrong.

Mods if this thread is unsuitable or falls under "looking for advice" could you please point me to any other section of boards where it might be more suitable for discussion.

Farcear

pixiebean22 wrote: »

As far as I am aware the "survivorship" rule doesn't just apply to husbands and wives but applies to anyone with joint account status once they are family members, i.e. it doesn't apply to two friends but would apply to two brothers.

... [irrelevant stuff] ...

Basically I am just wondering about this "survivorship" rule and if anyone has any idea on how it works. I have stated above my understanding of it but please correct me if I am wrong.

Survivorship is not limited to relatives.


Explanation:

Revenue.ie wrote:

Joint property

Joint property is property held in the joint names of two or more people. The property can be real property (e.g. land and buildings) or personal property (e.g. bank accounts). The liability to tax in respect of property in joint names depends on the beneficial interest of each of the parties in the relevant property. Property in joint names will usually be held under a joint tenancy or a tenancy in common.

Benefits taken under this heading must be summarised in Part 8 of the Inland Revenue Affidavit.


Joint tenancy -- FIRST WAY OF HOLDING JOINT PROPERTY; THIS IS THE ONE WITH SURVIVORSHIP

Joint tenancy means that two or more people have an interest in the property, but do not own their share outright since the title to the property includes the title of the other joint owner(s). A joint tenant cannot sell, gift or lease his/her share of the property without severing the joint tenancy. On the death of one of the joint tenants, the deceased person’s share will automatically pass by survivorship to the surviving joint tenant. The deceased person’s share is not an asset of the estate and should not be included in Part 4 or 5 of the Inland Revenue Affidavit. The benefit taken by the survivor can however have tax implications depending on the amount, group threshold etc. (See Inheritance Tax).

The survivorship principle normally applies to real property but it can also apply to personal property, e.g. joint bank accounts. However, in certain circumstances, the survivorship principle may not apply and a resulting trust may arise.


Resulting Trust -- EXCEPTION TO SURVIVORSHIP

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.


Tenancy in common -- SECOND WAY OF HOLDING JOINT PROPERTY; NO SURVIVORSHIP

Tenancy in common means that the portion of the joint property (normally land or buildings) held by each person is owned separately by that person. The joint owner can sell, gift, lease or otherwise dispose of his/her share of the property as he/she wishes. When a tenant in common dies, his/her share of the property passes according to his/her will or intestacy and does not pass automatically to the surviving tenant(s) in common.

daenerysstormborn3

Thanks for that post. From that I believe that the survivorship rule does apply as the money was held in both their names before my partner's father's death and all of the money in the bank accounts was left to my partner in his father's will.