Can My Mother Name Only One Sibling as Beneficiary on a CD Apart From Her Will?

Full question:

MY brother is listed as the joint owner on checking, saving accounts and cds with my elderly widowed mother. Her will states that the money is to be divided equally amongst the 3 children. The banks states that they do not honor the will in case of my mother's death and that the money will become the property of the joint owner. My question is, what happens to the money should my brother die before he distributes the money. He has a spouse and I am concerned that the money would go to his estate or to her. He has also added his spouse as one of the beneficiaries on a large CD. How do I protect my interest in my portion of the estate?

• Category: Wills and Estates
• Subcategory: Probate
• Date: 04/07/2025
• State: Texas

Answer:

If it is a survivorship account, or transfer on death account, it passes outside the probate process. That means it will not be included as part of the estate that either passes under a will or according to state intestacy laws (applicable when there is no will). If the account is held as tenants in common, it's possible that the deceased owner's share could pass to heirs. If the parent names only one sibling on a transfer-on-death (TOD) asset, it will not be considered part of the estate that passes under a will. TOD assets go to named beneficiaries.

If an agent under a power of attorney acts outside the scope of authority granted or for personal gain, a breach of fiduciary claim may be made.

The elements of a cause of action for breach of fiduciary duty are:

(1) Plaintiff and Defendant share a relationship whereby:

(a) Plaintiff reposes trust and confidence in Defendant, and

(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or
protect Plaintiff;

(2) Defendant breaches its duties to Plaintiff; and

(3) Plaintiff suffers damages.

The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Affirmative defenses to a claim for breach of fiduciary duty can include, but are not limited to:

(1) The passing of the statute of limitations for filing the claim.

(2) Lack of fiduciary relationship (for example, when the parties did not enter a fiduciary relationship, but rather conducted business in an arm’s length transaction there is no duty to protect the other party or disclose facts which the other party could have discovered by its own diligence.)

(3) Lack of standing

(4) Approval (for example, if the alleged actions followed full disclosure to and the consent of the Plaintiff)

(5) Business judgment rule (ex. that the corporate fiduciary's actions were motivated by a bona fide interest in the well being of the corporation where shareholders are the ones owed the fiduciary duty)