O.C.G.A. § 7-1-813 (2019)

Annotations

Cross references. Joint tenancy with survivorship generally, § 44-6-190. Law reviews. For article, “Multiple Party Accounts: Georgia Law Compared with the Uniform

Probate Code,” see 8 Ga. L. Rev. 739 (1974). For article surveying Georgia cases in the area of wills, trusts, and administration of estates from June 1977 through May 1978, see 30 Mercer L. Rev. 259 (1978). For article surveying legislative and judicial developments in Georgia’s will,

trusts, and estate laws, see 31 Mercer L. Rev. 281 (1979). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For annual survey of law of wills, trusts, and administration of estates, see 44 Mercer L. Rev. 445 (1992).

For annual survey article on commercial law, see 50 Mercer L. Rev. 193 (1998). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 13-2039 have been included in the annotations for this Code section. In order to constitute a “joint account” for purposes of O.C.G.A. § 7-1-813, an arrangement must constitute a contract of deposit of funds between a depositor and a financial institution; a municipal bond is not a contract of deposit, but an evidence of indebtness issued by a city or other corporate public body. Urban v. Lemley, 232 Ga. App. 259, 501 S.E.2d 529, 1998 Ga. App. LEXIS 581 (1998). Presumptions. - When savings certificates were issued jointly to a decedent and another party and since the certificates contain no language expressly creating a survivorship interest, one of two presumptions will be applied, depending on the date of issue of the certificates: (1) if the certificates were issued before the effective date of former Code 1933, § 41A-3804 (see now O.C.G.A. § 7-1-813), July 1, 1976, the presumption is that there was no right of survivorship intended; or (2) if the certificates were issued after July 1, 1976, there is a presumption that a right of survivorship was intended unless there is clear and convincing evidence to the contrary. Collins v. Collins, 176 Ga. App. 79, 335 S.E.2d 307, 1985 Ga. App. LEXIS 2197 (1985). There exists a presumption that a right of survivorship is intended by the issuance of joint certificates of deposit, absent clear and convincing evidence to the contrary. Wynn v. Wynn, 202 Ga. App. 679, 415 S.E.2d 287, 1992 Ga. App. LEXIS 133 (1992), cert. denied, No. S92C0628, 1992 Ga. LEXIS 273 (Ga. Mar. 18, 1992).

Trial court erred to the extent the court applied the presumption in O.C.G.A. § 7-1-813(a) to funds which the executors withdrew from the original joint accounts and placed in accounts solely in their name because to the extent they took funds in excess of their ownership from a joint account containing funds owned by two beneficiaries and placed those funds in an account in their name, they severed the joint account relationship and extinguished the presumption that the funds belonged to them. Shirley v. Sailors, 329 Ga. App. 850, 766 S.E.2d 201, 2014 Ga. App. LEXIS 785 (2014). Survivorship presumption rebutted. - Presumption of survivorship in O.C.G.A. § 7-1-813 was effectively rebutted since there was testimony from a family member that around the time decedent opened a certificate account with the money from the decedent’s sister’s estate, the decedent gave assurances that the money was “taken care of” and would eventually reach those the money was intended to reach, as the plaintiff would “do the right thing with it”. Hopkins v. Moore, 207 Ga. App. 383, 427 S.E.2d 853, 1993 Ga. App. LEXIS 178 (1993). When as the decedent had done with other assets, a decedent designated the defendant as co-owner with the decedent of subordinated debentures with right of survivorship, evidence was sufficient to show that decedent intended that the defendant should receive the gifts which resulted from the defendant’s transfer of their debentures and the sale of stock decedent owned individually. Stewart v. Stewart, 240 Ga. App. 573, 524 S.E.2d 267, 1999 Ga. App. LEXIS 1424 (1999), cert. denied, No. S00C0403, 2000 Ga. LEXIS 278 (Ga. Mar. 10, 2000). Denial of a sister’s motion for a judgment notwithstanding the verdict was af-

firmed as there was evidence supporting the imposition of a constructive trust after a mother’s death on a bank account owned jointly with a right of survivorship by the mother and the sister since the sister acknowledged that the account was opened for the mother’s convenience. Jenkins v. Jenkins, 281 Ga. App. 756, 637 S.E.2d 56, 2006 Ga. App. LEXIS 1165 (2006), cert. denied, No. S07C0281, 2007 Ga. LEXIS 87 (Ga. Jan. 8, 2007). Survivorship presumption not rebutted. - In an action by the executor of a joint tenant’s estate against the executor of the surviving joint tenant’s estate, evidence presented by the former was not sufficient to overcome the presumption that funds in joint bank accounts belong to the survivor’s estate. Urban v. Lemley, 232 Ga. App. 259, 501 S.E.2d 529, 1998 Ga. App. LEXIS 581 (1998). Denial of a sister’s and an executrix’s motions for a judgment notwithstanding the verdict were reversed as a constructive trust could not be imposed over the proceeds of a condemnation since: (1) a mother did not make any agreement with her children regarding the quitclaim deeds or the proceeds of the condemnation; (2) the documents signed by the siblings were unequivocal and unrestricted; (3) the mother did not make any promise with the intent not to carry it out; (4) there was nothing to indicate that when the mother obtained a certificate of deposit and opened a money market account in her and the executrix’s and the sister’s names as joint tenants with right of survivorship, she meant to do anything other than that; and (5) the siblings did not raise the issue of a constructive trust in the condemnation proceedings and were collaterally estopped from raising the issue in a later action. Jenkins v. Jenkins, 281 Ga. App. 756, 637 S.E.2d 56, 2006 Ga. App. LEXIS 1165 (2006), cert. denied, No. S07C0281, 2007 Ga. LEXIS 87 (Ga. Jan. 8, 2007). Sufficient evidence to overcome presumption. - In an action to recover property of an estate, when the administrator presented evidence that the decedent intended to divide the decedent’s estate among the decedent’s children

equally and did not intend for the decedent’s two youngest sons to have the funds in the joint accounts at the decedent’s death, and also presented evidence of undue influence in the creation of the accounts, there was some evidence to overcome the presumption arising from O.C.G.A § 7-1-813, and a directed verdict was inappropriate. Myers v. Myers, 195 Ga. App. 529, 394 S.E.2d 374, 1990 Ga. App. LEXIS 610 (1990). Lack of intention to make gift of funds. - Trial judge’s determination that the decedent’s lack of intention to make a gift of the funds to the decedent’s daughter was established by clear and convincing evidence; thus, applying either O.C.G.A § 7-1-813(a) or pre-existing law, the trial judge was authorized to declare that the funds belonged to the estate. James v. Elder, 186 Ga. App. 810, 368 S.E.2d 570, 1988 Ga. App. LEXIS 522 (1988). Evidence showing that the decedent’s daughter had suggested putting another name on the decedent’s certificates of deposit “in case Mama got sick,” provided clear and convincing support for the jury’s determination that the decedent had added the daughter’s name to the certificates for convenience rather than to effect a gift of the funds to the daughter. Turner v. Mikell, 195 Ga. App. 766, 395 S.E.2d 20, 1990 Ga. App. LEXIS 729 (1990). Since the decedent’s expressed intent in establishing joint accounts was for the convenience of the decedent’s niece in writing checks, paying bills and expenses, and handling the decedent’s affairs during the decedent’s illness, there was sufficient evidence to overcome the presumption that the niece, as surviving joint tenant, was entitled to the accounts. Williamson v. Echols, 205 Ga. App. 453, 422 S.E.2d 329, 1992 Ga. App. LEXIS 1185 (1992). Intent held question for jury. - After a decedent had given a power of attorney to the decedent’s nephews, and created joint accounts with one of the nephews, while expressing a concern that someone have access to the decedent’s money should the decedent become ill, but there was testimony that the decedent understood the effect of survivorship accounts, there existed a material issue

regarding the decedents’ intent, which created a jury question. Godwin v. Johnson, 197 Ga. App. 829, 399 S.E.2d 581, 1990 Ga. App. LEXIS 1474 (1990). In an action for conversion of an estate’s assets relating to a joint account created under O.C.G.A. § 7-1-813 between the executrix and a half-sister, given that some evidence existed that the decedent’s purpose in establishing a joint account between the executrix of the decedent’s estate and the half-sister was for the decedent’s convenience, and not to effect a gift, summary judgment was erroneously granted to the half-sister. Gray v. Benton, 280 Ga. App. 339, 634 S.E.2d 86, 2006 Ga. App. LEXIS 732 (2006), cert. denied, No. S06C1978, 2006 Ga. LEXIS 920 (Ga. Oct. 30, 2006). In a dispute over a joint account created by a father, mother, and daughter, although only the father made contributions to the account, the daughter’s contributions could include deposits made by him for her; because some evidence indicated an intent that the money would belong to the daughter, the trial court erred by concluding that all of the funds belonged to the mother after the father’s death. Howard v. Leonard, 330 Ga. App. 331, 765 S.E.2d 466, 2014 Ga. App. LEXIS 830 (2014), cert. denied, No. S15C0636, 2015 Ga. LEXIS 211 (Ga. Mar. 30, 2015). Simultaneous death of husband and wife. - When the husband and wife died simultaneously there is no evidence, either “clear and convincing” or otherwise, which would authorize a finding that the husband did not intend for the wife to have a right of survivorship as to the joint bank accounts. Trust Co. Bank v. Thornton, 204 Ga. App. 903, 420 S.E.2d 817, 1992 Ga. App. LEXIS 1042 (1992). Equitable division of property titled in name of surviving wife. - When the issue of the division of marital assets of a former husband and wife had not been resolved at the time of the husband’s death, property acquired as a direct result of the labor and investments of the former husband during the course of the marriage was subject to equitable division in spite of the fact that it was

titled in the former wife’s name after the former husband’s death as a matter of contract law. White v. White, 253 Ga. 267, 319 S.E.2d 447, 1984 Ga. LEXIS 900 (1984). Ex-spouse entitled to balance of funds jointly held. - In a dispute between an estate administratrix and the decedent’s ex-spouse, the trial court did not err by granting the ex-spouse summary judgment as to the accounts that were jointly held with the decedent because their divorce settlement agreement did not address such accounts and Georgia law entitled the ex-spouse to the balance remaining. Lowry v. Fenzel, 331 Ga. App. 603, 769 S.E.2d 522, 2015 Ga. App. LEXIS 58 (2015). Joint tenancy not terminated by tenant’s incapacity. - Joint tenancies in bank and stock investment accounts and in real property did not terminate as a matter of law when one of the joint tenants was declared incapacitated and a guardian was appointed for the incapacitated individual’s person and property. A guardian, unlike a trustee, has no beneficial title in the ward’s estate, but is merely a custodian or manager. Moore v. Self, 222 Ga. App. 71, 473 S.E.2d 507. Two parties having joint control of account does not make deposits therein a gift from one to the other when there was no relinquishment of dominion by the original depositor such as would create a gift in presenti. Georgia Sav. Bank & Trust Co. v. Sims, 332 F. Supp. 1306, 1971 U.S. Dist. LEXIS 10932 (N.D. Ga. 1971) (decided under former Code 1933, § 13-2039). Joint property not property of trust estate. - Funds, which had been deposited by a trust donor from a joint account in the names of one of the beneficiaries, the donor, and the trustee had been used prior to the donor’s death to purchase securities in the name of the donor and the trustee as joint tenants; those securities properly belonged to the trustee as the surviving party under O.C.G.A. §§ 7-1-813(a) and 14-5-8, and did not belong to the trust estate. Davis v. Walker, 288 Ga. App. 820, 655 S.E.2d 634, 2007 Ga. App. LEXIS 1250 (2007).

OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions under former Ga. L. 1937-38, Ex. Sess., p. 307 are included in the annotations for this Code section. Disposition of joint account in federal institution when one party

dies. - Upon death of the depositor in a federal savings and loan association, another person whose name was on the depositor’s account is entitled absolutely to the deposit. 1958-59 Ga. Op. Att’y Gen. 19 (decided under Ga. L. 1937-38, Ex. Sess., p. 307).

RESEARCH REFERENCES Am. Jur. 2d. 10 Am. Jur. 2d, Banks and Financial Institutions, § 662 et seq. C.J.S. 9 C.J.S., Banks and Banking, §§ 298, 299. ALR. Gift or trust by deposit of funds

belonging to depositor in bank account in name of himself and another, 103 A.L.R. 1123; 135 A.L.R. 993; 149 A.L.R. 879. Conflict of laws as to disposition of and relative rights to bank deposits in the names of more than one person, 25 A.L.R.2d 1240.