Removal of JTWROS status from a brokerage account

[lenbo]

What is the name of your state (only U.S. law)? NY

About 10 years ago, my mother opened a brokerage account with both of our names in JTWROS status (for estate planning purposes to avoid probate). The broker for this account periodically moved companies over the last decade -- but my mother always moved her accounts to wherever this broker went and re-opened a new account with the usual JTWROS status in both of our names. I have never withdrawn a penny from this account. Now she wants to remove my name from the account. I have repeatedly refused to remove my name -- and was just served civil papers to have my name removed from the account. My mother's contention is that this was done 10 years ago as a "mere convenience" and as a "matter of expediency" -- and that she "did not intend to make a gift to me of these funds". The brokerage firm and I are named as co-defendants. What types of defenses do i have to retain my name on the account with JTWROS status ?What is the name of your state (only U.S. law)?

[tranquility]

You don't really have defenses, you only have the facts. Do you have anything but the titling to indicate it was a gift? Do you have any records indicating you contributed money?

If the answer to those are no, then you will probably lose the action. While title is presumptive, if mom can overcome the presumption the court will change things to the proper ownership.

[lenbo]

Many thanks for your reply (free advice).
How would you respond to the below advice (which I paid for) ?

"Unless she can prove that she was not of right mind at the time she created this account or that you coerced into creating this account, there is no way she can remove you. To remove someone from a JTWROS requires your agreement to be removed. So she has no grounds to fight this unless she can invalidate the account as being formed illegally by the means already stated.

If she has filed suit, you can file a motion requesting dismissal on the grounds that she presents no legal grounds to justify removal."

[tranquility]

A gift requires intent to make a gift and acceptance. Her claim will be that she did not intend to make a gift and that it was solely to foster inheritance. The argument is used all the time to unwind things which have tax implications. The IRS often accepts the argument.

You can demurrer. See what the judge says. However, I bet there are some cases which allow the partition in your state. It would certainly be cheaper if the judge were to dismiss with prejudice. At the very least, he might require a more detailed set of facts which mom will use to try to prove ownership of the the account.

[Dandy Don]

Your mother has the right to make whatever changes she desires regarding her assets and estate. All she needed to do was to inform her broker about this via certified letter and/or ask for an account status change form from the brokerage. This does not need to go to court and you would be wise to do whatever you need to do to handle the matter outside of court. Let your mother have what she wants on this, as you were given poor advice. Don't you see that if you don't agree to what she wants here that it may affect your inheritance? You have no legal grounds to stand on and was the person who gave you the advice an attorney?

[lenbo]

many thanks -- i appreciate your taking the time to give your perspective/opinion. that's what i just 'love' about so-called law -- you can ask 5 different attorneys the same question -- and get 5 different answers. as a layman, while i continue to research this particular case, i'm seeing that the areas of law in play here include commercial, contracts, financial/banking, estate planning -- and perhaps even other areas. and i'm also finding that the area of expertise of whatever attorney i speak to often colors each of their answers -- understandable of course. yes all of the advice i've been given has come from several attorneys. your reply would be based upon what area of expertise and what similar prior experience with such a matter ?

[anteater]

Originally Posted by lenbo

many thanks -- i appreciate your taking the time to give your perspective/opinion. that's what i just 'love' about so-called law -- you can ask 5 different attorneys the same question -- and get 5 different answers. as a layman, while i continue to research this particular case, i'm seeing that the areas of law in play here include commercial, contracts, financial/banking, estate planning -- and perhaps even other areas. and i'm also finding that the area of expertise of whatever attorney i speak to often colors each of their answers -- understandable of course. yes all of the advice i've been given has come from several attorneys. your reply would be based upon what area of expertise and what similar prior experience with such a matter ?

The thing is that this will be a matter of state statute and case law (and, of course, the facts in this particular case). Unless, the responder here is familiar with all of those in New York, the response needs to be general.

I would think that this is not a novel question. If you are interviewing to retain an attorney, I suggest asking what statutes/cases (most likely cases) would support your position.

[lenbo]

i agree 100% -- good advice. i don't see that this is just a simple matter of sending a certified letter/form to the broker. i continue to research this. if anyone happens to have or come across any relevant links/information, i'd greatly appreciate a heads-up. please don't hesitate to offer up any thoughts you may have.