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.