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Other non-community assets, such as real estate, automobiles, and securities held in certificate form are governed by Prob C §46 and the cases decided under it; Prob C §§436-462 do not apply to these assets.
Securities held in street name may also be excluded from the provisions of Prob C §§436-449, because of the vagueness of the statute’s definition of account.
Texas recognizes seven different types of jointly owned or jointly controlled assets: • Joint tenancy with right of survivorship, commonly referred to as JTWROS • Joint tenancy that does not carry rights of survivorship because of a failure to overcome the presumption against them • The tenancy in common, which has the same result as a joint tenancy • Informal trust accounts at financial institutions • P. By contrast, a joint tenancy with right of survivorship cannot consist of community property.
Thus, the Texas statute not only reverses the presumption, but requires a written agreement to overcome the presumption against survivorship.
Ironically, until 1987 the statute was titled “Joint Tenancies Abolished,” even though it contained a sentence allowing the owners to create a joint tenancy.
Unilateral Severance of Non-Bank Account Joint Tenancy It is not clear whether a party may unilaterally sever a joint tenancy that is not community property and not covered by the multiple party account rules of Prob C §436-449.
In 1962, in the context of a bank account (before the multiple party account rules were enacted), the Texas Supreme Court stated in dicta that a husband who created a right of survivorship for the benefit of his wife could change the terms of the account unilaterally during his lifetime.
Generally, the word “survivor” has to be used to create a right of survivorship. Dulak, 513 SW2d 205 (Tex 1974) (holding that clear language of survivorship could be defeated by extrinsic evidence that no JTWROS was intended).] “. Birdwell, 624 SW2d 661, 663 (Tex App — Houston [14th Dist] 1981, no writ) (court also considered the extrinsic evidence of the decedent’s will, which indicated that jointly-owned bank accounts were to pass outside of the will).] “In the event of the death of either of us the funds shall be payable to the survivor.” [William Marsh Rice University v.
Thus, the following phrases have been held to create a refutable presumption that survivorship was intended: “. Birdwell, 624 SW2d 661, 663 (Tex App — Houston [14th Dist] 1981, no writ) (court also considered the extrinsic evidence of the decedent’s will, which indicated that jointly-owned bank accounts were to pass outside of the will; the decedent in Birdwell died in 1975, before Prob C §439 was enacted).)] For property covered by Prob C §46, “payable to survivor” and other similar wording may still be enough to create a right of survivorship. Meador, 533 SW2d 365, 369-70 (Tex Civ App — Dallas 1975, writ ref’d n.r.e.) (“Either one or both or to the survivor to sign checks (sic)” was held not to create a right of survivorship; however, this case concerned a bank account and so may have been abrogated by the enactment of Prob C §439(a) in 1979).] Furthermore, the survivor may be able to use extrinsic evidence to show the parties’ intent to create the right.
Although the creators of the Uniform Probate Code have tried to bring back the common law presumption, Texas has rejected this change in two different provisions.
The Uniform Probate Code, dealing with accounts at financial institutions, read as follows in 1979 when the Texas legislature adopted it: Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.
Similarly, the Texas legislature altered the Uniform Probate Code provision dealing with informal trust accounts (where the signature card serves as the only trust agreement).