Bill Text: FL S1184 | 2019 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Bank Property of Deceased Accountholders

Spectrum: Bipartisan Bill

Status: (Failed) 2019-05-03 - Died in Judiciary [S1184 Detail]

Download: Florida-2019-S1184-Introduced.html

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       Florida Senate - 2019                                    SB 1184
       
       
        
       By Senator Baxley
       
       
       
       
       
       12-00570A-19                                          20191184__
    1                        A bill to be entitled                      
    2         An act relating to payments to surviving successors;
    3         creating s. 655.795, F.S.; defining the terms
    4         “qualified account” and “surviving successor”;
    5         authorizing a financial institution to pay to the
    6         surviving successor of a decedent depositor, without
    7         any court proceeding, order, or judgment authorizing
    8         the payment and not earlier than a specified time, the
    9         funds in the decedent’s qualified accounts if the sum
   10         does not exceed a specified amount; requiring the
   11         surviving successor to provide a certified copy of the
   12         decedent’s death certificate and a specified affidavit
   13         to the financial institution; providing that the
   14         financial institution has no duty to make certain
   15         determinations; providing construction relating to
   16         liability and indemnification; providing a criminal
   17         penalty; providing an affidavit form the surviving
   18         successor may use; providing construction relating to
   19         any conflict with the Florida Probate Code; providing
   20         an effective date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Section 655.795, Florida Statutes, is created to
   25  read:
   26         655.795 Payment to successor without court proceedings.—
   27         (1) For purposes of this section, the term:
   28         (a) “Qualified account” means a depository account or a
   29  certificate of deposit held in the sole name of the decedent
   30  with no pay on death or other survivor designation.
   31         (b) “Surviving successor” means:
   32         1. The surviving spouse of the decedent;
   33         2. If the decedent did not leave a surviving spouse, an
   34  adult child of the decedent; or
   35         3. If the decedent did not leave a surviving spouse or an
   36  adult child, the parent of the decedent.
   37         (2)(a) A financial institution in this state may pay to the
   38  surviving successor of a decedent, without any court
   39  proceedings, order, or judgment authorizing the payment, the
   40  funds on deposit in all qualified accounts of the decedent at
   41  the financial institution if the total amount of such funds does
   42  not exceed $10,000. The financial institution may make such
   43  payment not earlier than 45 days after the date of the
   44  decedent’s death.
   45         (b) The surviving successor must provide the financial
   46  institution with a certified copy of the decedent’s death
   47  certificate and a sworn affidavit that includes all of the
   48  following:
   49         1. A statement attesting that the surviving successor is
   50  the surviving spouse, adult child, or parent of the decedent.
   51         a. If the surviving successor is the surviving spouse, a
   52  statement that either all of the decedent’s children are also
   53  the children of the surviving spouse, or a statement identifying
   54  the children of the decedent who are not also children of the
   55  surviving spouse and that the written consent of each of those
   56  children to the withdrawal of funds in the qualified account by
   57  the surviving spouse is attached. The natural parent or the
   58  guardian of any such child who is a minor may give consent on
   59  behalf of the child.
   60         b. If the surviving successor is an adult child, the
   61  affidavit must attest that the decedent left no surviving
   62  spouse. The affidavit must also indicate that there are no other
   63  surviving adult children of the decedent, or must include a
   64  statement identifying the other surviving adult children of the
   65  decedent and stating that that the written consent of the other
   66  surviving children to the withdrawal of funds from the qualified
   67  account by the affiant adult child is attached. If any such
   68  child is a minor, the natural parent or the guardian of such
   69  child may give consent on behalf of the child.
   70         c. If the surviving successor is a parent, the affidavit
   71  must attest that the decedent left no surviving spouse or adult
   72  child. The affidavit must also indicate that there is no other
   73  surviving parent of the decedent, or must include a statement
   74  identifying the other surviving parent and stating that the
   75  written consent of the other surviving parent to the withdrawal
   76  of funds from the qualified account by the affiant parent is
   77  attached.
   78         2. The date of death of the decedent and the address of the
   79  last residence of the decedent.
   80         3. A statement attesting that the total amount of all
   81  qualified accounts held by the decedent with any financial
   82  institution does not exceed an aggregate total of $10,000.
   83         4. A statement acknowledging that a personal representative
   84  has not been appointed to administer the estate of the decedent,
   85  that no probate or summary administration procedures have been
   86  commenced with respect to the estate of the decedent, and that
   87  after diligent inquiry, the surviving successor believes in good
   88  faith that no last will and testament of the decedent will be
   89  presented to any court for administration.
   90         5. A statement attesting either that the affiant has made a
   91  diligent search for creditors of the decedent, and that after
   92  the search, has no knowledge of the existence of any unpaid
   93  creditor of the decedent, or that the written consent of all
   94  known creditors of the decedent to the withdrawal by the
   95  surviving successor is attached.
   96         6. A statement acknowledging that the payment of the funds
   97  constitutes a full release and discharge of the financial
   98  institution for the amount paid and that the surviving successor
   99  indemnifies the financial institution against claims; demands;
  100  expenses, including attorney fees and court costs; losses; or
  101  damages incurred by the financial institution for taking any
  102  action, or failing to take an action, in connection with the
  103  payment of the funds.
  104         (c) The financial institution is not required to determine
  105  whether the contents of the sworn affidavit are truthful. The
  106  payment of funds by the financial institution to the surviving
  107  successor constitutes a full release and discharge of the
  108  financial institution for the amount paid. A person does not
  109  have a right or cause of action against a financial institution
  110  because of such payment, and the surviving successor must
  111  indemnify and hold harmless the financial institution against
  112  claims; demands; expenses, including attorney fees and court
  113  costs; losses; or damages incurred by the financial institution
  114  for taking any action, or failing to take an action, in
  115  connection with the affidavit or the payment.
  116         (d) The surviving successor who withdraws funds is
  117  personally liable:
  118         1. To the creditors of the decedent to the extent of the
  119  amount paid;
  120         2. To the personal representative of the decedent to the
  121  extent of the amount paid;
  122         3. If a personal representative has not been appointed, to
  123  the other intestate heirs of the decedent, to the extent of
  124  excess of the amount paid over the amount that is properly
  125  attributable to the intestate share of the surviving successor;
  126  and
  127         4. If the personal representative has been discharged, to
  128  the devisees of the estate to the extent of excess of the amount
  129  paid over the amount that would have been devised to the
  130  surviving successor.
  131         (e) Personal liability of the surviving successor under
  132  this section is not barred by s. 733.702 or s. 733.710 unless
  133  the surviving successor publishes a notice to creditors which
  134  complies with s. 733.2121, except that the notice must state
  135  that the creditors must notify the surviving successor of the
  136  claim within the time limits set forth in s. 733.702 or be
  137  forever barred, in which case the claim must be barred as
  138  provided in s. 733.702.
  139         (f) In addition to any other penalty provided by law, a
  140  person who knowingly makes a false statement in a sworn
  141  affidavit provided to a financial institution pursuant to this
  142  section commits theft, punishable as provided in s. 812.014.
  143         (2) The surviving successor may use the following affidavit
  144  form to fulfill the requirements of paragraph (2)(b):
  145  
  146    AFFIDAVIT UNDER SECTION 655.795, FLORIDA STATUTES, TO OBTAIN   
  147        BANK PROPERTY OF DECEASED ACCOUNTHOLDER: ...(Name of       
  148                            deceased)...                           
  149  State of ....
  150  County of ....
  151  
  152  Before me, the undersigned authority, personally appeared
  153  Affiant ...(name of Affiant)... of ...(residential address of
  154  Affiant)..., who has been sworn and says the following
  155  statements are true:
  156  
  157         1. Affiant is (initial one response):
  158         .... The surviving spouse of the deceased and the decedent
  159  had no children who are not also children of the Affiant.
  160         .... The surviving spouse of the deceased. The children of
  161  the decedent who are not also children of the Affiant are
  162  identified as ...(names of children)..., and the written consent
  163  of each such child to the withdrawal of funds in the qualified
  164  account by the Affiant is attached.
  165         .... A surviving adult child of the deceased, and the
  166  deceased left no surviving spouse and no other surviving
  167  children.
  168         .... A surviving adult child of the deceased, and the
  169  deceased left no surviving spouse. The other surviving children
  170  of the decedent are identified as ...(names of children)... and
  171  the written consent of each such child to the withdrawal of
  172  funds in the qualified account by the Affiant is attached.
  173         .... A surviving parent of the deceased, and the deceased
  174  left no surviving spouse, no surviving adult children, and no
  175  other surviving parent.
  176         .... A surviving parent of the deceased, and the deceased
  177  left no surviving spouse and no surviving adult children. The
  178  other surviving parent of the decedent is identified as ...(name
  179  of other parent)... and the written consent of such other parent
  180  of the decedent to the withdrawal of funds in the qualified
  181  account by the Affiant is attached.
  182         2. As shown in the certified death certificate, the date of
  183  death was ...(date of death)... and the last address of the
  184  deceased was ...(last address)....
  185         3. Total amount of all accounts held in the sole name of
  186  the decedent with any financial institution does not exceed an
  187  aggregate total of $10,000.
  188         4. A personal representative has not been appointed to
  189  administer the estate of the deceased and no probate or summary
  190  administration procedures have been commenced with respect to
  191  the estate of the decedent. After diligent inquiry, the Affiant
  192  believes in good faith that no last will and testament of the
  193  decedent will be presented to any court for administration.
  194         5. Affiant has (initial one response):
  195         .... Made a diligent search for creditors of the decedent
  196  and has no knowledge of the existence of any unpaid creditor of
  197  the decedent.
  198         .... Made a diligent search for creditors of the decedent
  199  and written consent of all creditors of the decedent known by
  200  the Affiant to the withdrawal of funds from the qualified
  201  account by Affiant is attached.
  202         6. Affiant is entitled to payment of the deceased’s deposit
  203  accounts (“Funds”) held by ...(name of financial institution)...
  204  (“Financial Institution”). Affiant requests full payment from
  205  the Financial Institution.
  206         7. The payment of the Funds constitutes a full release and
  207  discharge of the Financial Institution for the amount paid.
  208         8. Individually and as the Affiant, the Affiant agrees to
  209  indemnify the Financial Institution and hold it free and
  210  harmless from any and all claims; demands; expenses, including
  211  attorney fees and court costs; losses; or damages incurred by
  212  the Financial Institution for any action taken, or failure to
  213  take an action, in connection with this Affidavit and the
  214  payment of the Funds to Affiant or as instructed by Affiant.
  215  By ...(signature of Affiant)...
  216  
  217         Sworn to and subscribed before me this .... day of
  218         .... by ...(name of Affiant)..., who is personally
  219         known to me or produced .... as identification, and
  220         did take an oath.
  221  
  222         ...(name of notary public)...
  223         Notary Public
  224         My Commission Expires:
  225         ...(date of expiration of commission)...
  226  
  227         (3) In the event of a conflict between this section and the
  228  Florida Probate Code, this section supersedes the conflicting
  229  provision of the Florida Probate Code.
  230         Section 2. This act shall take effect July 1, 2019.