Mississippi Law § 81-5-63. Deposit in name of two or more persons; payments to successors of deceased depositors without administration; “successor” defined.

1. Section 81-5-63 – Deposit in name of two or more persons; payments to successors of deceased depositors without administration; “successor” defined
   (1) When a deposit has been made or is hereafter made in the name of two (2) or more persons, payable to any one (1) of those persons, or payable to any one (1) of those persons or the survivor, or payable to any one (1) of those persons or to the survivor or survivors, or payable to the persons as joint tenants, the deposit or any part thereof or interest or dividends thereon may be paid to any one (1) of those persons, without liability whether one or more of those persons is living or not, and the receipt of acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made. The making of a deposit in that form, or the making of additions thereto, shall create a presumption in any action or proceeding to which either the bank or any survivor is a party of the intention of all the persons named on the deposit to vest title to the deposit and the additions thereto and all interest or dividends thereon in the survivor or survivors.

   (2)

   (a) Any bank may pay to the successor of a deceased depositor, without necessity of administration, any sum to the credit of the decedent not exceeding Twelve Thousand Five Hundred Dollars ($12,500.00), without liability to any other persons, relatives or beneficiaries, and the receipt of acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made. This section shall apply to all banking institutions, including national banks and postal savings banks within the state. The term “deposit” as used in this section shall include, but not be limited to, any form of deposit or account, such as a savings account, checking account, time deposit, demand deposit or certificate of deposit, whether negotiable, nonnegotiable or otherwise.

   (b) For the purposes of this subsection, “successor” means the decedent’s spouse; or, if there is no surviving spouse of the decedent, then the adult with whom any minor children of the decedent are residing; or, if there is no surviving spouse or minor children of the decedent, then any adult child of the decedent; or, if there is no surviving spouse or children of the decedent, then either parent of the decedent; or, if there is no surviving spouse, children or parent of the decedent, then any adult sibling of the decedent.

 

 

1. In general.

A testator cannot, by will, dispose of property which he or she placed, during his or her lifetime, in a validly created joint tenancy account with rights of survivorship. A subsequent will does not destroy the joint tenancy and does not terminate that tenancy and divest the corpus of it into the estate of the testator. In re Will & Estate of Strange, 548 So. 2d 1323, 1989 Miss. LEXIS 431 (Miss. 1989).

This section [Code 1942, § 5205] does not limit right to create joint tenancy, with right of survivorship in personal property. Stewart v. Barksdale, 216 Miss. 760, 63 So. 2d 108, 1953 Miss. LEXIS 691 (Miss. 1953).

2. Applicability.

This section [Code 1942, § 5205] was inapplicable where a note was made payable to a husband and his wife, or the survivor of them. Vaughn v. Vaughn, 238 Miss. 342, 118 So. 2d 620, 1960 Miss. LEXIS 411 (Miss. 1960).

3. Joint ownership of account.

When three individuals jointly owned four certificates of deposit (CDs), and the word “or” was listed in between the owners’ names on the CDs, any one of the owners were entitled to treat the CDs as their own, pursuant to Miss. Code Ann. §81-5-63(1), and each had an equal right to withdraw the CDs; thus, the bank holding the CDs was not allowed to favor one owner over another. Epperson v. SOUTHBank, 2011 Miss. App. LEXIS 350 (Miss. Ct. App. June 14, 2011), rev’d, 93 So.3d 10, 2012 Miss. LEXIS 248 (Miss. 2012).

In a case where a certificate of deposit (CD) was jointly owned, a bank was properly found not liable when one owner unilaterally withdrew the funds for placement into another CD; either of the co-owners were able to withdraw the funds. DeJean v. DeJean, 982 So. 2d 443, 2007 Miss. App. LEXIS 730 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 236 (Miss. 2008).

 

Trustee was granted summary judgment against the debtors’ children for the value of the proceeds from certificates of deposit (CDs), pursuant to 11 U.S.C. § 550(a)(1), and avoided, pursuant to 11 U.S.C. § 548(a)(1)(B), the debtor wife’s transfers of the proceeds into bank accounts for the children because the CDs vested in the debtor, the designated payable on death beneficiary, when the owner died and the transfers were made within one year of the bankruptcy filing, were made while the debtors were insolvent, and were made for no consideration or less than reasonably equivalent value. Applewhite v. Akin (In re Akin), 366 B.R. 619, 2007 Bankr. LEXIS 1385 (Bankr. N.D. Miss. 2007).

Where a confidential relationship existed, the law governing inter vivos gifts, rather than testamentary dispositions, applied in determining the validity of the establishment of joint accounts, even though the beneficiary did not exercise control over the assets in the accounts until after the depositor’s death, and therefore proof of mental incompetence or an abuse of the confidential relationship was not required to raise a rebuttable presumption of undue influence accompanying the establishment of the joint accounts; thus, the beneficiary of the establishment of the joint accounts had the burden of proving, by clear and convincing evidence, the absence of undue influence. Madden v. Rhodes, 626 So. 2d 608, 1993 Miss. LEXIS 412 (Miss. 1993).

A person may make a gift in joint tenure by making a deposit of the subject of the gift in a bank in such a manner that it will stand to the credit of the donor and the donee as joint owners. Leverette v. Ainsworth, 199 Miss. 652, 23 So. 2d 798, 1945 Miss. LEXIS 285 (Miss. 1945).

Precise form is not essential to create a joint bank account with right of survivorship when formal deficiencies are supplied by definite proof. Leverette v. Ainsworth, 199 Miss. 652, 23 So. 2d 798, 1945 Miss. LEXIS 285 (Miss. 1945).

To create a joint bank deposit or account with right of survivorship, it must be either in the form of a deposit to the credit of depositor or another named person, or in similarity thereto, or else the intention to create a joint account for deposit must be well proved aliunde. Leverette v. Ainsworth, 199 Miss. 652, 23 So. 2d 798, 1945 Miss. LEXIS 285 (Miss. 1945).

Mere fact that bank account is made subject to the checks of two or more persons does not in itself constitute evidence of joint ownership. Leverette v. Ainsworth, 199 Miss. 652, 23 So. 2d 798, 1945 Miss. LEXIS 285 (Miss. 1945).

Deposit in bank to the credit of depositor or another named person raises a presumption under this section that the deposit was intended to be in joint ownership, and subject to withdrawal by either of the joint owners. Leverette v. Ainsworth, 199 Miss. 652, 23 So. 2d 798, 1945 Miss. LEXIS 285 (Miss. 1945).

Where proven facts sufficiently disclose a clear intention to create a right which embraces the essential elements of joint ownership and survivorship in respect to a particular bank deposit or account, the intention so proved will be given effect and the survivor will be held entitled to the fund. Leverette v. Ainsworth, 199 Miss. 652, 23 So. 2d 798, 1945 Miss. LEXIS 285 (Miss. 1945).

Transaction whereby depositor made a bank deposit to the credit of his mother but subject to check by the depositor at any time, did not create a joint account or deposit with right of survivorship in the absence of proof that the depositor clearly intended to create such an account, so that upon the depositor’s death the deposit belonged to his estate. Leverette v. Ainsworth, 199 Miss. 652, 23 So. 2d 798, 1945 Miss. LEXIS 285 (Miss. 1945).

4. —Presumption.

 

Section81-5-63 and §81-12-137, which deal, respectively, with joint deposits in a bank checking account and in a savings account in a savings association, create a presumption of joint tenancy ownership with the right of survivorship. On the other hand, such presumption does not apply to bank issued certificates of deposit held in the names of 2 or more persons, in the absence of express intent on the certificate to create such joint tenancy. Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800, 1989 Miss. LEXIS 366 (Miss. 1989).

A presumption arises that a bank account either in the name of “Mr. or Mrs. J. H. Barrow” or in the name of “Mr. or Mrs. J. H. Barrow, payable to the order of either or survivor” created joint ownership with the right of survivorship. Shearin v. Coleman, 201 Miss. 193, 28 So. 2d 841, 1947 Miss. LEXIS 384 (Miss. 1947).

Where deposit is made in name of two persons, payable to either, statutory presumption, in absence of evidence to the contrary, is sufficient to establish right to deposit in the survivor. In re Lewis’ Estate, 194 Miss. 480, 13 So. 2d 20, 1943 Miss. LEXIS 89 (Miss. 1943).

5. —Rebuttal of presumption.

In an action by an administrator with will annexed against the daughter of the decedent to recover money in a joint bank account of the decedent and the daughter upon the grounds that the decedent was induced to create the joint account by undue influence and fraud practiced upon him by the daughter, and that the decedent did not have the mental capacity to create the account, the evidence sustained the chancellor’s findings contrary to the administrator’s contentions. Edwards v. Jefcoat, 230 Miss. 56, 92 So. 2d 342, 1957 Miss. LEXIS 344 (Miss. 1957).

The presumption created by this statute was not overcome by evidence that one of two persons in whose names certificates of deposit were issued in the alternative bequeathed a considerable cash legacy to another. Shearin v. Coleman, 201 Miss. 193, 28 So. 2d 841, 1947 Miss. LEXIS 384 (Miss. 1947).

6. —Survivorship rights.

Daughter was a joint owner of the funds at issue when the conservatorship for her father was established, and the formal transfer of the funds from joint accounts to conservatorship accounts did not destroy her survivorship interest in those funds; during the father’s life, the funds in the joint accounts were properly used to pay for his necessary care and living expenses, but the daughter retained her survivorship interest in the unused funds following his death. Jackson v. Touchstone (In re Addison), 242 So.3d 926, 2018 Miss. App. LEXIS 15 (Miss. Ct. App. 2018).

The joint owner of three certificates of deposit was entitled to them by right of survivorship where the decedent’s attorney in fact under a power of attorney placed the joint owner’s name on the certificates of deposit, the attorney in fact and the joint owner never shared a confidential relationship while the attorney in fact acted for the decedent, there was no evidence that the attorney in fact acted in bad faith, and the joint owner and the decedent did not share a confidential relationship until after the joint owner’s name was placed on the certificates of deposit. In re Dunn v. Reilly, 784 So. 2d 935, 2001 Miss. LEXIS 126 (Miss. 2001).

The 1988 amendment to this section, which created a conclusive presumption of survivorship, applied to certificates of deposit procured in 1986 and renewed in 1992. McNeil v. Hester, 753 So. 2d 1057, 2000 Miss. LEXIS 23 (Miss. 2000).

Certificates of deposit issued to the decedent and her son as joint tenants and a personal checking account registered jointly in her name and her son’s name did not pass under the decedent’s will, but passed pursuant to the banking documents, notwithstanding a prior will which instructed that her estate be shared by her children equally. Horn v. Horn (Estate of Huddleston), 755 So. 2d 435, 1999 Miss. App. LEXIS 16 (Miss. Ct. App. 1999).

Joint bank account in Mississippi was not product of the depositor’s business colleague’s undue influence, so as to overcome presumption that funds belonged to colleague, as survivor; although depositor and colleague had close relationship, colleague was not in position to exercise dominant influence over depositor when account was opened, and there was no showing that colleague did not act in good faith or that depositor did not act independently in his actions. Cantrell v. Pat O’Brien’s Bar, La. App. 97-0545, 705 So. 2d 1205, 1998 La. App. LEXIS 8 (La.App. 4 Cir. 1998).

A certificate of deposit payable to the decedent and her heir, which was renewed by the decedent in 1981, created a right of survivorship in the heir. Estate of Stamper v. Edwards, 607 So. 2d 1141, 1992 Miss. LEXIS 544 (Miss. 1992).

 

Funds represented by a 1981 certificate of deposit made “payable on death” to the decedent’s heir did not constitute any part of the decedent’s estate, but rather, by reason of §81-5-63, the funds became vested in the heir upon the decedent’s death. Estate of Stamper v. Edwards, 607 So. 2d 1141, 1992 Miss. LEXIS 544 (Miss. 1992).

In a proceeding to determine the husband’s right to renounce his wife’s will, where a certificate of deposit in the bank was payable to the wife or the wife’s brother, upon the death of the wife, this deposit became the property of the brother, and was no portion of the wife’s estate. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

7. Garnishment.

A joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which evidence is admissible to show what portion of the funds is actually owned by each depositor. Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800, 1989 Miss. LEXIS 366 (Miss. 1989).

8. Setoff.

 

Deposits in a savings account in the name of a customer or her nephew, who was the executor of her estate, were presumptively intended to be in joint ownership and subject to withdrawal by either of the joint owners pursuant to §81-5-63, and therefore the bank had a right to set off the balance in the account against the nephew’s debt to the bank where the nephew did not give notice to the bank that the funds were an asset of the estate of his deceased aunt rather than his alone as survivor, and some of the nephew’s dealings with the account prior to and after his aunt’s death concerned his individual interests unrelated in any way to his aunt. Graham v. Bank of Leakesville, Branch of First State Bank, 556 So. 2d 1079, 1990 Miss. LEXIS 41 (Miss. 1990).

9. Undue influence.

Reversion of certificates of deposit (CDs) to their status prior to amendments by the decedent’s adult child through a durable power of attorney was appropriate because the decedent and the adult child maintained a confidential relationship, failed to rebut the presumption of undue influence, and abused the adult child’s authority under the power of attorney by amending the parties to the CDs. Because the decedent retained an ownership interest in the CDs, neither the original conveyance, nor the subsequent transfers were inter vivos gifts. In re Estate of Johnson, 237 So.3d 698, 2017 Miss. LEXIS 457 (Miss. 2017).