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Big will mess-is there a resolution?

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Regina Ockelman

Junior Member
What is the name of your state? CA
My aunt moved to CA from CO with a CO will naming myself and my mom as co-executors. The will divides her property into three equal shares, between my mom, my brother, and me. However, the majority of my aunt's money is in investment accounts with defined beneficiaries.
My aunt is terminally ill and my mother is her conservator. When my aunt passes away, only the money in the accounts without defined beneficiaries will have to be probated, correct? But if the other accounts have unequal amounts divded among the three benficiaries of the will is there any way to make each person's share equal? This was my aunt's intent, but it looks like the person whose name is on the account with the most money in it will walk away with more than his or her fair share, since the will doesn't apply to defined beneficiary accounts. Got any ideas?What is the name of your state?
 


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anteater

Senior Member
What you do not mention is if the 3 of you are in agreement that all your aunt's assets, whether in accounts with designated beneficiaries or devised by will, should be divided equally.

If the 3 of you are agreed, I can see 2 possibilities:

1) The designated beneficiaries can probably disclaim, allowing the account assets to be claimed by the probate estate to be distributed under the tems of the will. (You would need to check with the investment firm on that,) However, since CA probate tends to be a pretty formal and relatively long process, you may not want to go that route.

2) The designated beneficiaries can claim their respective assets and then gift the appropriate amounts to the others to make a more or less equal distribution. That assumes that everybody involved is honorable and won't back out once the money is in hand. These would be gifts and you would need to be aware of the gift tax reporting rules. Gift taxes and reporting have been hashed out on this forum many. many times. Use the search function to find those threads.
 
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tecate

Member
Is this a California conservatorship? If so, why are the accounts not in your mother's name, as conservator?
 
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BlondiePB

Senior Member
anteater said:
What you do not mention is if the 3 of you are in agreement that all your aunt's assets, whether in accounts with designated beneficiaries or devised by will, should be divided equally.

If the 3 of you are agreed, I can see 2 possibilities:

1) The designated beneficiaries can probably disclaim, allowing the account assets to be claimed by the probate estate to be distributed under the tems of the will. (You would need to check with the investment firm on that,) However, since CA probate tends to be a pretty formal and relatively long process, you may not want to go that route.

2) The designated beneficiaries can claim their respective assets and then gift the appropriate amounts to the others to make a more or less equal distribution. That assumes that everybody involved is honorable and won't back out once the money is in hand. These would be gifts and you would need to be aware of the gift tax reporting rules. Gift taxes and reporting have been hashed out on this forum many. many times. Use the search function to find those threads.
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Ant, there's a conservator here in this.
 
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BlondiePB

Senior Member
anteater said:
Yes, but even if mother renamed the accounts to reflect the conservatorship, she should not have zapped the beneficiary designations.
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The conservator must close the ward's accounts & reopen new accounts. The conservator, then, cannot designate anyone a beneficiary of those accounts without the blessing of the court.

Edit: The blessing of the court must be in writing from the court.
 
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anteater

Senior Member
It's been a long time since I looked at conservatorship stuff, but something stuck in the back of my mind and your comments caused me to go back and dig something up. This is from the Hanbook for Conservators published by the Judicial Council of California. It pertains to bank accounts, but there is similar guidance for brokerage accounts:

Accounts the conservatee owns with a designated beneficiary If you discover
that any of the conservatee’s accounts have a beneficiary, or payee,
named on the account, for example, a Totten trust account or a Pay on Death
(POD) account, be sure to keep the beneficiary or payee designation when you
change the account name to the conservatorship and to you as conservator.
Otherwise, you may be seriously affecting the conservatee’s estate plan. The
money remaining in such accounts is supposed to go to the named beneficiary
or payee when the conservatee dies. You should also be reluctant to withdraw
money from these accounts without first talking to your lawyer, because if you
withdraw money from one account and not from another, and each account has
a different named beneficiary or payee, you will be affecting the conservatee’s
estate plan. Often a court order is needed to solve this problem.
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In any event, it's been two days since the OP has been around. For all we know, she may have been using the term "conservator" very loosely. :D
 
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BlondiePB

Senior Member
anteater said:
It's been a long time since I looked at conservatorship stuff, but something stuck in the back of my mind and your comments caused me to go back and dig something up. This is from the Hanbook for Conservators published by the Judicial Council of California. It pertains to bank accounts, but there is similar guidance for brokerage accounts:



In any event, it's been two days since the OP has been around. For all we know, she may have been using the term "conservator" very loosely. :D
Click to expand...
I read something different in the state statutes, and will admit to reading it & typing this without my spectacles. Too bad my new troll continues to stick around. :eek:
 
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tecate

Member
This is a new one on me too. (Its been awhile since I have done a conservatorship as well) Maybe someone got whacked in a lawsuit, hence the direction in the handbook. Section 2580(b)(8) could be read as the way to proceed without getting in trouble.
 
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