Part II - Non-Probate Transfer

To continue our blog on the Estate of Gardner, the guardian of the Decedent's daughter (on behalf of her daughter ) filed an opposition to the petitioner's and appellant's petition in February 2009. In her opposition, the guardian contended that because the decedent never completed the paperwork for the Wachovia accounts, then they couldn't be considered 'payable on death' (POD) since the POD terms were never maintained. In addition, The Decedent Gardner "never established POD terms for the Wells Fargo account initially, so there was nothing to maintain or transfer when the monies in that account were transferred to Wachovia." The guardian Ann further stated that petitioner failed to provide clear and convincing evidence that the decedent intended to create an express oral trust.

In the same month, the guardian of the Decedent's son also filed a demurrer to the petition. The son's guardian claimed that the petitioner failed to plead with certainty whether her claim of the existence of a Totten trust (a form of trust in the U.S. in which a settlor places money in a bank account or security with instructions that upon the settlor's death, whatever is in that account will pass to a named beneficiary) or POD account is based upon "the terms of a written contract carried over from the Decedent's Atlas account, an oral contract based upon the Decedent's conversations with Wachovia employees, or a contract implied by conduct when Wachovia drafted an Application for Registration of Account in Beneficiary From Transfer on Death Direction that was never executed by the decedent." The son's guardian also contended that the petitioner failed to provide adequate support to show that the Decedent intended to create an express oral trust.

In Marcy 2009, the petitioner filed an opposition to the demurrer, stating that she had provided sufficient facts to survive a general demurrer.

In April 2009, the probate court sustained the Decedent's daughter's and son's guardians' opposition and demurrer, without leave to amend stating that "as a matter of law, the failure to sign the form resulted in the failure to create a POD account." The probate court also concluded that petitoiner did not sufficiently plead the creation of an oral trust because she used the same facts to support the creation of the POD account to support the creation of an oral trust. Adria appealed the probate court's ruling.

Demurrers and oppositions are important tactics in trust and estate litigation. Litigation is a technical endeavor and requires the attorney to carefully consider the case strategy.

Tune in for more on this topic on subsequent blog.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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