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.