Is Mom's bank account part of her estate even if my sister's name is on it?

A fellow caregiver asked...

My sister was my mother's power of attorney. She then put her name on my mothers checking account while she was dying in the hospital. In my mother's will it said everything is to be split between us 50/50. My sister said the checking account is now hers and she does not have to split it. Is this legal?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

There are two answers to your questions"”one from a legal perspective, the other personal and practical.

Legally, if your sister became a true joint owner of the checking account while your mother was still alive, rather than just authorized to sign checks, then the money remaining in the account would pass automatically to your sister rather than becoming part of your mother's estate.

However, if this change in ownership occurred while your mother was in the hospital and not able to consent to the transaction, or did not understand that the joint ownership arrangement would mean that your sister would take the funds, then you may be able to contest it.

The reality is that such a legal battle would not likely be easy or inexpensive. You would likely have to hire a lawyer for help and be able to present some evidence that your mother's intent was for you to get half the money at her death. Those may be two difficult hurdles to overcome.

This bit of hard news that might dissuade you from suing your sis probably doesn't remove the feeling form your mind that you are being robbed of some money that should be yours. I'm assuming this issue has caused at least a bit of tension between the two of you, but given that the pain and frustration won't go away on its own, it may be worth your while to have another discussion with her about it.

Temper your talk with some intelligence of your own. Be sure you know how much was in the account, for example, so that you know whether your hackles are being raised for good reason. You might also inquire as to whether the funds were spent on your mother's final medical needs and burial, which might have been substantial.

If other sources were used to pay these expenses, it might help underscore to your sister that you have been treated less than fairly. If she's able to show that she spent considerable time and money in caregiving during your mother's final days, however, it may help sway your feelings that you weren't given such a raw deal.