Probate Reader

Are joint bank accounts and joint brokerage accounts really the same?

Posted by: Pierson W. Backes | Posted on: March 24th, 2014 | 0 Comments

Joint bank accounts and joint investment accounts are the source of so many of the estate disputes I see in my practice. While joint bank accounts and joint brokerage accounts may seem like more or less the same thing – particularly as banks offer more and more accounts that would be traditionally considered investment vehicles – in distribution on death, joint bank accounts and joint brokerage accounts are governed by different statutes in New Jersey.

When two people own a bank account, the rights of the owners are governed by a statute called The Multiple-Party Deposit Account Act (N.J.S.A. 17:16 I-1 et seq.). This law lays out the owners’ rights while both are alive, and more importantly for my practice, the effect of the death of one of the owners.

Securities and brokerage accounts can also be jointly named, but are governed by another statute in New Jersey, the Transfer-on-Death Security Registration Act (N.J.S.A. 3B:30-1 et seq.). I am only aware of one New Jersey case specifically addressing whether the Multiple-Party Deposit Account Act applies to brokerage accounts (IMO Estate of Suraci), but it seems to me that the existence of a separate statute specifically addressed to brokerage accounts suggests it is not.

What is “Notice of Probate” anyway?

Posted by: Pierson W. Backes | Posted on: February 4th, 2013 | 0 Comments

When representing a personal representative in my probate practice, it not unusual for my client to scoff at the idea of making a formal notice of probate.

Take a common situation in which the two children of the decedent are the sole heirs, and one of the children is the executor.  If the sibling heirs are personally close, a formal notice of probate might seem silly.  Sending the formal notice described in the court rule might even be irritating to the brother or sister;  if they’ve read the Will and know that it was probated, the notice of probate they’ll receive will contain less information than they already know.

Now, within the context of my representation, the issue is easy enough to resolve.  Notice of probate is simply part of the administration, and when it’s handled by the law firm it’s rarely questioned by the recipient.

A more interesting circumstance is where we get involved late in an administration where no formal notice of probate was delivered, or where we represent an heir who has not received a formal notice of probate.  The question then is whether whatever notice the heir or next-of-kin received was sufficient.

Rule 4:80-6 describes what must be in a notice of probate.  All beneficiaries and next-of-kin (in general terms) are to receive “a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request.”

It is clear that mere knowledge of the existence of a Will and the identity of the executor named in the Will is not enough to constitute notice of probate.  In re Estate of Green, 421 A.2d 600 (App.Div. 1980).   It’s likewise clear that a technical defect separate from the contents of the notice itself – such as failure to file proof of notice with Surrogate – does not make the notice insufficient.

There is some authority to support the position that actual knowledge of the facts that should be contained in the notice is like sufficient, even where there is noncompliance with the literal requirement of written notice.  Seee.g. In re Will of Landow 199 A.2d 43 (App.Div. 1964).

But far better to actually comply with the rule, even when all of the facts contained in the notice are already known to the recipient.

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