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 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 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.