## Facts

- Walter S. Atkinson died domiciled in Ohio, leaving a will that made gifts to his daughters from a prior marriage, Maxine Burdette and Patricia Burgeois.
- Walter’s will made no provision for his surviving spouse, Emma Atkinson.
- During Walter’s lifetime, he bought three certificates of deposit (CDs) at Willard United Bank.
- Each CD was registered in Walter’s name and marked “P.O.D.” (payable on death) to either Maxine Burdette or Patricia Burgeois.
- After Walter’s death, the estate’s inventory and appraisement did not list the three CDs as estate property.
- Emma elected to take her statutory spousal (forced) share instead of taking under the will and filed exceptions to the inventory and appraisement, claiming the CDs belonged in the probate estate.
- The daughters opposed the exceptions, arguing the P.O.D. designations caused the CDs to pass to them at Walter’s death outside probate, by operation of law, similar to survivorship arrangements in other financial accounts.

## Issues

1. Whether certificates of deposit titled in the decedent’s name but marked “P.O.D.” to a named beneficiary are testamentary in nature and therefore ineffective unless executed with the statutory formalities required for a will.
2. If the P.O.D. designations are ineffective, whether the certificates of deposit must be included in the estate inventory and appraisement and treated as probate assets for purposes of the surviving spouse’s forced share.

## Decision

- The probate court sustained the widow’s exceptions to the inventory and appraisement regarding the certificates of deposit.
- The court held the P.O.D. language on the CDs attempted to transfer property at death without creating a present property interest in the named payees during the decedent’s life.
- Because the CDs functioned as a death-effective transfer controlled by the depositor until death, the court treated the arrangement as testamentary and invalid without will-execution formalities.
- The court ordered the CDs included in the estate inventory and appraisement as probate assets.

## Legal Principles

- A transfer that has no meaningful effect until the transferor’s death and gives the named beneficiary no present ownership interest during the transferor’s life is testamentary in character.
- Testamentary dispositions must satisfy the statutory requirements for executing a valid will; a bank instrument that operates only at death cannot replace those requirements.
- “Payable on death” language, standing alone, does not create the same present co-ownership interests found in true survivorship arrangements; without a present interest, the beneficiary has only an expectancy until the depositor’s death.
- When a purported P.O.D. arrangement is treated as an invalid testamentary disposition, the funds remain the decedent’s property at death and must be administered through the probate estate, including application of the surviving spouse’s statutory share.

## Conclusion

The probate court ruled that Walter Atkinson’s P.O.D. certificates of deposit did not transfer outside probate because the designations were testamentary in substance and were not executed with will formalities. As a result, the certificates had to be included in the estate inventory and appraisement and were available in calculating and satisfying Emma Atkinson’s forced share.


In re Estate of Atkinson, 175 N.E.2d 548 (1961)