FEBRUARY 11, 2002 VOLUME 9, NUMBER 33
Ruth Libros, like many parents, wanted to make it easy for her children to manage her affairs if she became incapacitated. She also wanted to make sure there would be no costly or time-consuming probate proceedings upon her death. She decided one way to achieve both results was to put her largest assets, including her Morgan Stanley Dean Witter brokerage account, in joint tenancy with her two children.
One of the reasons lawyers often give for not establishing joint tenancy accounts is the possibility that one’s own assets may become exposed to one’s children’s creditors. Ms. Libros learned about this problem the hard way.
Three years after Ms. Libros opened the joint tenancy account a Philadelphia law firm specializing in personal injury actions (Deutsch, Larrimore & Farnish, P.C.) secured a judgment against Ms. Libros’ daughter Joyce Johnson. The $300,000 judgment represented the law firm’s attempt to recover funds stolen by Ms. Johnson while she was a bookkeeper at the firm. For some unspecified reason, Ms. Libros paid a portion of the judgment against her daughter; the law firm noticed that the brokerage account on which the check was drawn listed Ms. Johnson as a joint owner.
Deutsch, Larrimore & Farnish filed a Writ of Execution against the brokerage account—in other words, they sought to seize the account to satisfy their judgment against Ms. Johnson. Ms. Libros objected, citing Pennsylvania law on joint tenancy bank accounts. She prevailed, but the law firm appealed to the Superior Court (in Pennsylvania, the intermediate appellate court).
Pennsylvania law, like that in Arizona and most other states, makes it clear that a joint bank account belongs to the listed account holders in proportion to their contributions. In other words, Ms. Libros’ account did not belong to her children because they had not put in any of the money. That merely restates an ancient common-law principle about joint accounts.
The law firm, however, pointed out that the Pennsylvania law did not specifically mention brokerage accounts, and it argued that Ms. Libros had made a gift to her children when she put their names on the account. Ms. Libros pointed out that neither of her children had put any money into the account, nor had either of them ever withdrawn funds or otherwise acted as if they owned any portion of the account. Her children’s names were on her account, explained Ms. Libros, only as a “convenience,” to make it easier for them to gain access to her money in the event she became incapable of taking care of her own finances, or upon her death. The Superior Court dismissed the law firm’s claim and agreed with the lower court—Ms. Libros’ account could not be seized by her daughter’s creditors just because she had put it in joint tenancy. Deutsch, Larrimore & Farnish, P.C., v. Johnson, January 22, 2002.
Ms. Libros’ legal dilemma should not be lost on parents facing the same question in Arizona. While Ms. Libros was successful in protecting her account, she incurred significant legal fees and suffered years of anxiety over the possibility that her life savings might be lost.
A far better approach for someone in Ms. Libros’ situation would be to establish a “Transfer on Death” title on her brokerage account. That, along with a well-drafted durable power of attorney, would have accomplished what she set out to do without exposing her account to legal challenges.
On April 29, 2004—seven long years after the issue first arose—Ms. Libros finally obtained some finality in the legal defense of her Morgan Stanley Dean Witter account. On that date the Pennsylvania Supreme Court affirmed the ruling described above, agreeing that Ms. Libros’ brokerage account should enjoy the same protection that a bank account or any account at another financial institution would receive. Although Ms. Libros prevailed, the uncertainty and financial cost to defending her position was almost certainly incalculable. Just to underscore the uncertainty, two of the Justices of the Pennsylvania Supreme Court would have reversed the earlier decisions and directed the trial judge to review whether Ms. Libros’ account might actually have been available to the law firm holding the judgment against her daughter.