Beware your financial institution. It can be the downfall of your estate plan.
You and your financial institution have a contract. The terms of that contract can be found in your bank account signature card, beneficiary agreement or similar account agreement. You signed it when you opened your account.
Financial Institution Restrictions
Financial institutions can, through their contracts, impose restrictions on how you style your accounts and name beneficiaries. Those restrictions often mean that your accounts will not go the way you intend for them to go upon your death.
Suppose a widowed mom has 3 adult children (Billy, Susie and Al) and 6 grandchildren (each child has two children). She wants everything to go to her adult children when she dies. Mom dutifully visits an attorney to write up her will. The attorney asks her “what if one your children dies before you do?” Mom thinks carefully and says “I want their children to get their share.” The attorney writes it up as “all to my children in equal shares, per stirpes.” The per stirpes phrase means that the deceased child’s share will go to that child’s descendants.
Next mom visits her friendly banker and says “I want everything in my account to go to my children when I die.” The banker hands her a beneficiary card, which contains a blank for the name of her beneficiaries. Writing in very small letters (because it is a very small blank), mom spells out the names of her 3 children. There is no second blank for contingent beneficiaries.
Then, tragically, mom and her youngest child, Al, are killed in a car accident. The assets going through mom’s will are divided the way mom intended: Billy gets 1/3, Susie gets 1/3, and Al’s 1/3 is divided between his two children.
Not so for the bank account. With its beneficiary designations, it passes by contract and not through the will. When Al died, so did his share. The money in the bank account is divided evenly between Billy and Susie, the 2 surviving children. Al’s children end up with nothing.
Why? Because the bank’s form did not allow for the per stirpes language or designation of contingent beneficiaries. The bank can get away with that because it is big, it makes its own rules, and it does not have to explain anything to anyone.
What Beneficiaries Does A Bank Accept?
That is just the beginning of possible bad outcomes. For example, many banks will not allow a trust to be named as a beneficiary unless it has a current tax identification number. That, of course, is not going to exist if the trust is in the will. Most banks will not allow a class to be named as a beneficiary – such as “all my grandchildren.” Some banks require that all jointly owned accounts be held “with right of survivorship,” meaning that the decedent’s share automatically goes to the other account holders.
There is even a more frightening problem – the disposition of your account if all of your named beneficiaries predecease you. Some institutions will pay it to your estate, while others will pay it to your heirs at law. Do you know how your bank will pay it?
How To Properly Set Your Beneficiaries With A Bank
What are your options? Persuade your institution to allow you to make your beneficiary designations on a separate piece of paper. Have your beneficiaries sign a contract that may over-ride the designations. Take your attorney with you to talk to your banker.
But the best option? Move your account to a friendlier institution.
Virginia Hammerle has practiced banking law, trial law and estate planning for almost 40 years. She is the president of Hammerle Finley Law Firm and is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. More blogs can be found at www.hammerle.com. Email legaltalk@hammerle.com to be added to the firm monthly newsletter.
