Bill Text: FL S0380 | 2020 | Regular Session | Comm Sub
Bill Title: Disposition of Personal Property
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Introduced - Dead) 2020-03-10 - Laid on Table, refer to CS/CS/HB 1439 [S0380 Detail]
Download: Florida-2020-S0380-Comm_Sub.html
Florida Senate - 2020 CS for CS for SB 380 By the Committees on Judiciary; and Banking and Insurance; and Senator Baxley 590-03951-20 2020380c2 1 A bill to be entitled 2 An act relating to the disposition of personal 3 property; amending s. 655.059, F.S.; specifying that a 4 financial institution is not prohibited from 5 disclosing specified information and providing copies 6 of specified affidavits to certain persons relating to 7 deceased account holders; creating s. 735.303, F.S.; 8 providing definitions; authorizing a financial 9 institution to pay funds on deposit in certain 10 accounts to a specified family member of a decedent 11 without any court proceeding, order, or judgment under 12 certain circumstances; requiring the family member to 13 provide the financial institution a certified copy of 14 the decedent’s death certificate and a specified 15 affidavit in order to receive the funds; providing an 16 affidavit form that the family member may use; 17 providing that the financial institution has no duty 18 to make certain determinations; specifying that a 19 person does not have a right or cause of action 20 against a financial institution for certain actions or 21 for failing to take certain actions; providing 22 liability for the family member who withdraws funds; 23 requiring a financial institution to maintain a copy 24 or image of the affidavit for a specified time; 25 authorizing the financial institution to provide 26 copies of the affidavit to certain persons; providing 27 a criminal penalty; creating s. 735.304, F.S.; 28 providing that estates of certain decedents are not 29 subject to probate administration if certain 30 conditions are met; providing that specified persons 31 may request distribution of a decedent’s assets by 32 affidavit filed with a court under certain 33 circumstances; providing requirements for content of 34 the affidavit and service of the affidavit on 35 specified persons; requiring certain actions relating 36 to the decedent’s creditors; authorizing the court to 37 approve the affidavit and payment of personal property 38 under certain circumstances; providing that bona fide 39 purchasers of personal property take the property free 40 of certain claims and rights; providing for liability 41 against certain personal property for a specified 42 time; providing for liability of recipients of the 43 decedent’s personal property under certain 44 circumstances; providing a limitation on liability of 45 the decedent’s estate and recipients of the estate 46 under certain circumstances; providing for the award 47 of costs and reasonable attorney fees under certain 48 circumstances; providing an effective date. 49 50 Be It Enacted by the Legislature of the State of Florida: 51 52 Section 1. Paragraph (b) of subsection (2) of section 53 655.059, Florida Statutes, is amended to read: 54 655.059 Access to books and records; confidentiality; 55 penalty for disclosure.— 56 (2) 57 (b) The books and records pertaining to trust accounts and 58 the deposit accounts and loans of depositors, borrowers, 59 members, and stockholders of any financial institution shall be 60 kept confidential by the financial institution and its 61 directors, officers, and employees and may not be released 62 except upon express authorization of the account holder as to 63 her or his own accounts, loans, or voting rights. However, 64 information relating to any loan made by a financial institution 65 may be released without the borrower’s authorization in a manner 66 prescribed by the board of directors for the purpose of meeting 67 the needs of commerce and for fair and accurate credit 68 information. Information may also be released, without the 69 authorization of a member or depositor but in a manner 70 prescribed by the board of directors, to verify or corroborate 71 the existence or amount of a customer’s or member’s account when 72 such information is reasonably provided to meet the needs of 73 commerce and to ensure accurate credit information. In addition, 74 a financial institution, affiliate, and its subsidiaries, and 75 any holding company of the financial institution or subsidiary 76 of such holding company, may furnish to one another information 77 relating to their customers or members, subject to the 78 requirement that each corporation receiving information that is 79 confidential maintain the confidentiality of such information 80 and not provide or disclose such information to any unaffiliated 81 person or entity. Notwithstanding this paragraph, this 82 subsection does not prohibit: 83 1. A financial institution from disclosing financial 84 information as referenced in this subsection as authorizedby85Pub. L. No. 106-102 (1999), as set forthin 15 U.S.C. s. 6802 86 (2010)U.S.C.A. s. 6802, as amended. 87 2. The Florida office of the international banking 88 corporation or international trust entity from sharing books and 89 records under this subsection with the home-country supervisor 90 in accordance with subsection (1). 91 3. A financial institution from disclosing the existence of 92 and amounts on deposit in any qualified account of a decedent 93 pursuant to s. 735.303 and from providing a copy of any 94 affidavit delivered to the financial institution pursuant 95 thereto, to a person authorized to receive such information 96 under s. 735.303. 97 4. A financial institution from disclosing the existence of 98 and amounts on deposit in any individual account of a decedent 99 to a petitioner that filed with the court a petition pursuant to 100 s. 734.1025 or s. 735.203, or to an affiant that filed with the 101 court an affidavit for disposition without administration 102 pursuant to s. 735.301 or s. 735.304. 103 Section 2. Section 735.303, Florida Statutes, is created to 104 read: 105 735.303 Payment to successor without court proceedings.— 106 (1) As used in this section, the term: 107 (a) “Family member” means: 108 1. The surviving spouse of the decedent; 109 2. An adult child of the decedent if the decedent left no 110 surviving spouse; 111 3. An adult descendant of the decedent if the decedent 112 left no surviving spouse and no surviving adult child; or 113 4. A parent of the decedent if the decedent left no 114 surviving spouse, no surviving adult child, and no surviving 115 adult descendant. 116 (b) “Qualified account” means a depository account or 117 certificate of deposit held by a financial institution in the 118 sole name of the decedent without a pay-on-death or any other 119 survivor designation. 120 (2) A financial institution in this state may pay to the 121 family member of a decedent, without any court proceeding, 122 order, or judgment, the funds on deposit in all qualified 123 accounts of the decedent at the financial institution if the 124 total amount of the combined funds in the qualified accounts at 125 the financial institution does not exceed an aggregate total of 126 $1,000. The financial institution may not make such payment 127 earlier than 6 months after the date of the decedent’s death. 128 (3) In order to receive the funds described in subsection 129 (2), the family member must provide to the financial institution 130 a certified copy of the decedent’s death certificate and a sworn 131 affidavit that includes all of the following: 132 (a) A statement attesting that the affiant is the surviving 133 spouse, adult child, adult descendant, or parent of the 134 decedent. 135 1. If the affiant is an adult child of the decedent, the 136 affidavit must attest that the decedent left no surviving 137 spouse. 138 2. If the affiant is an adult descendant of the decedent, 139 the affidavit must attest that the decedent left no surviving 140 spouse and no surviving adult child. 141 3. If the affiant is a parent of the decedent, the 142 affidavit must attest that the decedent left no surviving 143 spouse, no surviving adult child, and no surviving adult 144 descendant. 145 (b) The date of death and the address of the decedent’s 146 last residence. 147 (c) A statement attesting that the total amount in all 148 qualified accounts held by the decedent in all financial 149 institutions known to the affiant does not exceed an aggregate 150 total of $1,000. 151 (d) A statement acknowledging that a personal 152 representative has not been appointed to administer the 153 decedent’s estate and attesting that no probate proceeding or 154 summary administration procedure has been commenced with respect 155 to the estate. 156 (e) A statement acknowledging that the affiant has no 157 knowledge of the existence of any last will and testament or 158 other document or agreement relating to the distribution of the 159 decedent’s estate. 160 (f) A statement acknowledging that the payment of the funds 161 constitutes a full release and discharge of the financial 162 institution’s obligation regarding the amount paid. 163 (g) A statement acknowledging that the affiant understands 164 that he or she is personally liable to the creditors of the 165 decedent and other persons rightfully entitled to the funds 166 under the Florida Probate Code, to the extent the amount paid 167 exceeds the amount properly attributable to the affiant’s share. 168 (h) A statement acknowledging that the affiant understands 169 that making a false statement in the affidavit may be punishable 170 as a criminal offense. 171 (4) The family member may use an affidavit in substantially 172 the following form to fulfill the requirements of subsection 173 (3): 174 175 AFFIDAVIT UNDER SECTION 735.303, FLORIDA STATUTES, TO OBTAIN 176 BANK PROPERTY OF DECEASED ACCOUNT HOLDER: ...(Name of 177 decedent)... 178 State of .... 179 County of .... 180 181 Before the undersigned authority personally appeared ...(name of 182 affiant)..., of ...(residential address of affiant)..., who has 183 been sworn and says the following statements are true: 184 (a) The affiant is (initial one of the following 185 responses): 186 .... The surviving spouse of the decedent. 187 .... A surviving adult child of the decedent, and the 188 decedent left no surviving spouse. 189 .... A surviving adult descendant of the decedent, and the 190 decedent left no surviving spouse and no surviving adult child. 191 .... A surviving parent of the decedent, and the decedent 192 left no surviving spouse, no surviving adult child, and no 193 surviving adult descendant. 194 (b) As shown in the certified death certificate, the date 195 of death of the decedent was ...(date of death)..., and the 196 address of the decedent’s last residence was ...(address of last 197 residence).... 198 (c) The affiant is entitled to payment of the funds in the 199 decedent’s depository accounts and certificates of deposit held 200 by the financial institution ...(name of financial 201 institution).... The total amount in all qualified accounts held 202 by the decedent in all financial institutions known to the 203 affiant does not exceed an aggregate total of $1,000. The 204 affiant requests full payment from the financial institution. 205 (d) A personal representative has not been appointed to 206 administer the decedent’s estate and no probate proceeding or 207 summary administration procedure has been commenced with respect 208 to the estate. 209 (e) The affiant has no knowledge of any last will and 210 testament or other document or agreement relating to the 211 distribution of the decedent’s estate. 212 (f) The payment of the funds constitutes a full release and 213 discharge of the financial institution regarding the amount 214 paid. 215 (g) The affiant understands that he or she is personally 216 liable to the creditors of the decedent and other persons 217 rightfully entitled to the funds under the Florida Probate Code, 218 to the extent the amount paid exceeds the amount properly 219 attributable to the affiant’s share. 220 (h) The affiant understands that making a false statement 221 in this affidavit may be punishable as a criminal offense. 222 223 By ...(signature of Affiant)... 224 225 Sworn to and subscribed before me this .... day of 226 .... by ...(name of Affiant)..., who is personally 227 known to me or produced .... as identification, and 228 did take an oath. 229 230 ...(Signature of Notary Public - State of Florida)... 231 ...(Print, Type, or Stamp Commissioned Name of Notary 232 Public)... 233 My commission expires: ...(date of expiration of 234 commission)... 235 (5) The financial institution is not required to determine 236 whether the contents of the sworn affidavit are truthful. The 237 payment of the funds by the financial institution to the affiant 238 constitutes the financial institution’s full release and 239 discharge regarding the amount paid. A person does not have a 240 right or cause of action against the financial institution for 241 taking an action, or for failing to take an action, in 242 connection with the affidavit or the payment of the funds. 243 (6) The family member who withdraws the funds under this 244 section is personally liable to the creditors of the decedent 245 and any other person rightfully entitled to the funds under the 246 Florida Probate Code to the extent the amount paid exceeds the 247 amount properly attributable to the family member’s share. 248 (7) The financial institution shall maintain a copy or an 249 image of the affidavit in accordance with its customary 250 retention policies. If a surviving spouse or descendant of the 251 decedent requests a copy of the affidavit during such time, the 252 financial institution may provide a copy of the affidavit to the 253 requesting surviving spouse or descendant of the decedent. 254 (8) In addition to any other penalty provided by law, a 255 person who knowingly makes a false statement in a sworn 256 affidavit given to a financial institution to receive a 257 decedent’s funds under this section commits theft, punishable as 258 provided in s. 812.014. 259 Section 3. Section 735.304, Florida Statutes, is created to 260 read: 261 735.304 Disposition without administration of intestate 262 property in small estates.— 263 (1) No administration shall be required or formal 264 proceedings instituted upon the estate of a decedent who has 265 died intestate leaving only personal property exempt under the 266 provisions of s. 732.402, personal property exempt from the 267 claims of creditors under the State Constitution, and nonexempt 268 personal property the value of which does not exceed the sum of 269 $10,000 and the amount of preferred funeral expenses and 270 reasonable and necessary medical and hospital expenses of the 271 last 60 days of the last illness, provided the decedent has been 272 deceased for more than 1 year and no administration of the 273 decedent’s estate is pending in this state. 274 (2) Any heir at law of the decedent entitled to a share of 275 the intestate estate pursuant to s. 732.102 or s. 732.103 may by 276 affidavit request distribution of assets of the decedent through 277 informal application under this section. The affidavit must be 278 signed and verified by the surviving spouse, if any, and any 279 heirs at law, except that joinder in the affidavit is not 280 required of an heir who will receive a full intestate share 281 under the proposed distribution of the personal property. Before 282 the filing of the affidavit, the affiant must make a diligent 283 search and reasonable inquiry for any known or reasonably 284 ascertainable creditors, and the proposed distribution must make 285 provision for payment of those creditors to the extent that 286 assets are available or the creditors must consent to the 287 proposed distribution. The affidavit must be served in the 288 manner of formal notice upon all heirs at law who have not 289 joined in the affidavit; upon all known or reasonably 290 ascertainable creditors of the decedent; and, if the decedent at 291 the time of death was over the age of 55 years of age, upon the 292 Agency for Health Care Administration. 293 (3) If the court is satisfied that subsection (1) is 294 applicable and the affidavit filed by the heir at law meets the 295 requirements of subsection (2), the court, by letter or other 296 writing under the seal of the court, may authorize the payment, 297 transfer, disposition, delivery, or assignment of the tangible 298 or intangible personal property to those persons entitled. 299 (a) Any individual, corporation, or other person paying, 300 transferring, delivering, or assigning personal property under 301 the authorization shall be forever discharged from liability 302 thereon. 303 (b) Bona fide purchasers for value from those to whom 304 personal property of the decedent has been paid, transferred, 305 delivered, or assigned shall take the property free of all 306 claims of creditors of the decedent and all rights of the 307 surviving spouse and all other beneficiaries or heirs at law of 308 the decedent. 309 (c) Personal property of the decedent that is not exempt 310 from claims of creditors and that remains in the possession of 311 those to whom it has been paid, delivered, transferred, or 312 assigned shall continue to be liable for claims against the 313 decedent until barred as provided in the Florida Probate Code. 314 Any known or reasonably ascertainable creditor who did not 315 consent to the proposed distribution and for whom provision for 316 payment was not made may enforce the claim and, if the creditor 317 prevails, shall be awarded costs, including reasonable attorney 318 fees, against those who joined in the affidavit. 319 (d) Recipients of the decedent’s personal property under 320 this section shall be personally liable for a pro rata share of 321 all lawful claims against the estate of the decedent, but only 322 to the extent of the value on the date of distribution of the 323 personal property actually received by each recipient, exclusive 324 of the property exempt from claims of creditors under the State 325 Constitution and Florida Statutes. 326 (e) Except as otherwise provided in s. 733.710, after 2 327 years from the death of the decedent, neither the decedent’s 328 estate nor those to whom it may be distributed shall be liable 329 for any claim against the decedent, unless within that time 330 proceedings have been taken for the enforcement of the claim. 331 (f) Any heir or devisee of the decedent who was lawfully 332 entitled to share in the estate but who was not included in the 333 distribution under this section may enforce all rights in 334 appropriate proceedings against those who signed the affidavit 335 or received distribution of personal property and, if 336 successful, shall be awarded costs including reasonable attorney 337 fees as in chancery actions. 338 Section 4. This act shall take effect July 1, 2020.