Bill Text: FL S0380 | 2020 | Regular Session | Comm Sub

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

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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

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       Florida Senate - 2020                              CS for SB 380
       
       
        
       By the Committee on Banking and Insurance; and Senator Baxley
       
       
       
       
       
       597-03513-20                                           2020380c1
    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 authorized by
   85  Pub. L. No. 106-102 (1999), as set forth in 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         Section 2. Section 735.303, Florida Statutes, is created to
   98  read:
   99         735.303 Payment to successor without court proceedings.—
  100         (1) As used in this section, the term:
  101         (a) “Family member” means:
  102         1. The surviving spouse of the decedent;
  103         2. An adult child of the decedent if the decedent left no
  104  surviving spouse;
  105         3. An adult descendant of the decedent if the decedent
  106  left no surviving spouse and no surviving adult child; or
  107         4. A parent of the decedent if the decedent left no
  108  surviving spouse, no surviving adult child, and no surviving
  109  adult descendant.
  110         (b) “Qualified account” means a depository account or
  111  certificate of deposit held by a financial institution in the
  112  sole name of the decedent without a pay-on-death or any other
  113  survivor designation.
  114         (2) A financial institution in this state may pay to the
  115  family member of a decedent, without any court proceeding,
  116  order, or judgment, the funds on deposit in all qualified
  117  accounts of the decedent at the financial institution if the
  118  total amount of the combined funds in the qualified accounts at
  119  the financial institution does not exceed an aggregate total of
  120  $1,000. The financial institution may not make such payment
  121  earlier than 6 months after the date of the decedent’s death.
  122         (3) In order to receive the funds described in subsection
  123  (2), the family member must provide the financial institution
  124  with a certified copy of the decedent’s death certificate and a
  125  sworn affidavit that includes all of the following:
  126         (a) A statement attesting that the affiant is the surviving
  127  spouse, adult child, adult descendant, or parent of the
  128  decedent.
  129         1. If the affiant is an adult child of the decedent, the
  130  affidavit must attest that the decedent left no surviving
  131  spouse.
  132         2. If the affiant is an adult descendant of the decedent,
  133  the affidavit must attest that the decedent left no surviving
  134  spouse and no surviving adult child.
  135         3. If the affiant is a parent of the decedent, the
  136  affidavit must attest that the decedent left no surviving
  137  spouse, no surviving adult child, and no surviving adult
  138  descendant.
  139         (b) The date of death and the address of the decedent’s
  140  last residence.
  141         (c) A statement attesting that the total amount in all
  142  qualified accounts held by the decedent in all financial
  143  institutions known to the affiant does not exceed an aggregate
  144  total of $1,000.
  145         (d) A statement acknowledging that a personal
  146  representative has not been appointed to administer the
  147  decedent’s estate and attesting that no probate proceeding or
  148  summary administration procedure has been commenced with respect
  149  to the estate.
  150         (e) A statement acknowledging that the affiant has no
  151  knowledge of the existence of any last will and testament or
  152  other document or agreement relating to the distribution of the
  153  decedent’s estate.
  154         (f) A statement acknowledging that the payment of the funds
  155  constitutes a full release and discharge of the financial
  156  institution’s obligation regarding the amount paid.
  157         (g) A statement acknowledging that the affiant understands
  158  that he or she is personally liable to the creditors of the
  159  decedent and other persons rightfully entitled to the funds
  160  under the Florida Probate Code, to the extent the amount paid
  161  exceeds the amount properly attributable to the affiant’s share.
  162         (h) A statement acknowledging that the affiant understands
  163  that making a false statement in the affidavit may be punishable
  164  as a criminal offense.
  165         (4) The family member may use an affidavit in substantially
  166  the following form to fulfill the requirements of subsection
  167  (3):
  168  
  169    AFFIDAVIT UNDER SECTION 735.303, FLORIDA STATUTES, TO OBTAIN   
  170        BANK PROPERTY OF DECEASED ACCOUNT HOLDER: ...(Name of      
  171                            decedent)...                           
  172  State of ....
  173  County of ....
  174  
  175  Before the undersigned authority personally appeared ...(name of
  176  affiant)..., of ...(residential address of affiant)..., who has
  177  been sworn and says the following statements are true:
  178         (a) The affiant is (initial one of the following
  179  responses):
  180         .... The surviving spouse of the decedent.
  181         .... A surviving adult child of the decedent, and the
  182  decedent left no surviving spouse.
  183         .... A surviving adult descendant of the decedent, and the
  184  decedent left no surviving spouse and no surviving adult child.
  185         .... A surviving parent of the decedent, and the decedent
  186  left no surviving spouse, no surviving adult child, and no
  187  surviving adult descendant.
  188         (b) As shown in the certified death certificate, the date
  189  of death of the decedent was ...(date of death)..., and the
  190  address of the decedent’s last residence was ...(address of last
  191  residence)....
  192         (c) The affiant is entitled to payment of the funds in the
  193  decedent’s depository accounts and certificates of deposit held
  194  by the financial institution ...(name of financial
  195  institution).... The total amount in all qualified accounts held
  196  by the decedent in all financial institutions known to the
  197  affiant does not exceed an aggregate total of $1,000. The
  198  affiant requests full payment from the financial institution.
  199         (d) A personal representative has not been appointed to
  200  administer the decedent’s estate and no probate proceeding or
  201  summary administration procedure has been commenced with respect
  202  to the estate.
  203         (e) The affiant has no knowledge of any last will and
  204  testament or other document or agreement relating to the
  205  distribution of the decedent’s estate.
  206         (f) The payment of the funds constitutes a full release and
  207  discharge of the financial institution regarding the amount
  208  paid.
  209         (g) The affiant understands that he or she is personally
  210  liable to the creditors of the decedent and other persons
  211  rightfully entitled to the funds under the Florida Probate Code,
  212  to the extent the amount paid exceeds the amount properly
  213  attributable to the affiant’s share.
  214         (h) The affiant understands that making a false statement
  215  in this affidavit may be punishable as a criminal offense.
  216  
  217  By ...(signature of Affiant)...
  218  
  219         Sworn to and subscribed before me this .... day of
  220         .... by ...(name of Affiant)..., who is personally
  221         known to me or produced .... as identification, and
  222         did take an oath.
  223  
  224         ...(Signature of Notary Public - State of Florida)...
  225         ...(Print, Type, or Stamp Commissioned Name of Notary
  226  Public)...
  227         My commission expires: ...(date of expiration of
  228  commission)...
  229         (5) The financial institution is not required to determine
  230  whether the contents of the sworn affidavit are truthful. The
  231  payment of the funds by the financial institution to the affiant
  232  constitutes the financial institution’s full release and
  233  discharge regarding the amount paid. A person does not have a
  234  right or cause of action against the financial institution for
  235  taking an action, or for failing to take an action, in
  236  connection with the affidavit or the payment of the funds.
  237         (6) The family member who withdraws the funds under this
  238  section is personally liable to the creditors of the decedent
  239  and any other person rightfully entitled to the funds under the
  240  Florida Probate Code to the extent the amount paid exceeds the
  241  amount properly attributable to the family member’s share.
  242         (7) The financial institution shall maintain a copy or an
  243  image of the affidavit in accordance with its customary
  244  retention policies. If a surviving spouse or descendant of the
  245  decedent requests a copy of the affidavit during such time, the
  246  financial institution may provide a copy of the affidavit to the
  247  requesting surviving spouse or descendant of the decedent.
  248         (8) In addition to any other penalty provided by law, a
  249  person who knowingly makes a false statement in a sworn
  250  affidavit given to a financial institution to receive a
  251  decedent’s funds under this section commits theft, punishable as
  252  provided in s. 812.014.
  253         Section 3. Section 735.304, Florida Statutes, is created to
  254  read:
  255         735.304 Disposition without administration of intestate
  256  property in small estates.—
  257         (1) No administration shall be required or formal
  258  proceedings instituted upon the estate of a decedent who has
  259  died intestate leaving only personal property exempt under the
  260  provisions of s. 732.402, personal property exempt from the
  261  claims of creditors under the State Constitution, and nonexempt
  262  personal property the value of which does not exceed the sum of
  263  $10,000 and the amount of preferred funeral expenses and
  264  reasonable and necessary medical and hospital expenses of the
  265  last 60 days of the last illness, provided the decedent has been
  266  deceased for more than 1 year and no administration of the
  267  decedent’s estate is pending in this state or has been
  268  previously granted.
  269         (2) Any heir at law of the decedent entitled to a share of
  270  the intestate estate pursuant to s. 732.102 or s. 732.103 may by
  271  affidavit request distribution of assets of the decedent through
  272  informal application under this section. The affidavit must be
  273  signed and verified by the surviving spouse, if any, and any
  274  heirs at law, except that joinder in the affidavit is not
  275  required of an heir who will receive a full intestate share
  276  under the proposed distribution of the personal property. Before
  277  the filing of the affidavit, the affiant must make a diligent
  278  search and reasonable inquiry for any known or reasonably
  279  ascertainable creditors, and the proposed distribution must make
  280  provision for payment of those creditors to the extent that
  281  assets are available or the creditors must consent to the
  282  proposed distribution. The affidavit must be served in the
  283  manner of formal notice upon all heirs at law who have not
  284  joined in the affidavit; upon all known or reasonably
  285  ascertainable creditors of the decedent; and, if the decedent at
  286  the time of death was over the age of 55 years of age, upon the
  287  Agency for Health Care Administration.
  288         (3) If the court is satisfied that subsection (1) is
  289  applicable and the affidavit filed by the heir at law meets the
  290  requirements of subsection (2), the court, by letter or other
  291  writing under the seal of the court, may authorize the payment,
  292  transfer, disposition, delivery, or assignment of the tangible
  293  or intangible personal property to those persons entitled.
  294         (a) Any individual, corporation, or other person paying,
  295  transferring, delivering, or assigning personal property under
  296  the authorization shall be forever discharged from liability
  297  thereon.
  298         (b) Bona fide purchasers for value from those to whom
  299  personal property of the decedent has been paid, transferred,
  300  delivered, or assigned shall take the property free of all
  301  claims of creditors of the decedent and all rights of the
  302  surviving spouse and all other beneficiaries or heirs at law of
  303  the decedent.
  304         (c) Personal property of the decedent that is not exempt
  305  from claims of creditors and that remains in the possession of
  306  those to whom it has been paid, delivered, transferred, or
  307  assigned shall continue to be liable for claims against the
  308  decedent until barred as provided in the Florida Probate Code.
  309  Any known or reasonably ascertainable creditor who did not
  310  consent to the proposed distribution and for whom provision for
  311  payment was not made may enforce the claim and, if the creditor
  312  prevails, shall be awarded costs, including reasonable attorney
  313  fees, against those who joined in the affidavit.
  314         (d) Recipients of the decedent’s personal property under
  315  this section shall be personally liable for a pro rata share of
  316  all lawful claims against the estate of the decedent, but only
  317  to the extent of the value on the date of distribution of the
  318  personal property actually received by each recipient, exclusive
  319  of the property exempt from claims of creditors under the State
  320  Constitution and Florida Statutes.
  321         (e) Except as otherwise provided in s. 733.710, after 2
  322  years from the death of the decedent, neither the decedent’s
  323  estate nor those to whom it may be distributed shall be liable
  324  for any claim against the decedent, unless within that time
  325  proceedings have been taken for the enforcement of the claim.
  326         (f) Any heir or devisee of the decedent who was lawfully
  327  entitled to share in the estate but who was not included in the
  328  distribution under this section may enforce all rights in
  329  appropriate proceedings against those who signed the affidavit
  330  or received distribution of personal property and, if
  331  successful, shall be awarded costs including reasonable attorney
  332  fees as in chancery actions.
  333         Section 4. This act shall take effect July 1, 2020.