By Blakely S. Moore
Handling a deceased person’s estate can be a complex and overwhelming task. There are many instances where the value of the estate’s assets make probate financially impractical, as the expenses involved may outweigh the benefits. While probate might be required depending on the worth of certain assets, there is an option available to survivors that can help bypass probate in specific cases—a tool known as an Affidavit to Obtain Bank Property of a Deceased Account Holder. This affidavit can be used to bypass the probate process under some circumstances.
What is an Affidavit to Obtain Bank Property of a Deceased Account Holder?
An Affidavit to Obtain Bank Property of a Deceased Account Holder is a legal document that a family member can use to claim the funds in the deceased’s bank accounts and certificates of deposit. The affidavit must be sworn and include specific information as outlined in Section 735.303 of the Florida Statutes.
How does an Affidavit to Obtain Bank Property of a Deceased Account Holder work?
An Affidavit to Obtain Bank Property of a Deceased Account Holder permits a bank or credit union in Florida to disburse the funds from the decedent’s accounts to an eligible family member. Financial institutions use this affidavit to:
- Verify the decedent’s relationship with the deceased.
- Confirm the bank account holder’s death and require notarization
A certified copy of the decedent’s death certificate, proof of identity, and proof of relationship to the deceased should also be brought to the bank. After the bank reviews and accepts the paperwork, the bank can release the funds. However,
What are the requirements of an Affidavit to Obtain Bank Property of a Deceased Account Holder?
The Affidavit must contain the following:
- A statement attesting that the affiant is the surviving spouse, adult child, adult descendant, or parent of the decedent.
- If the affiant is an adult child of the decedent, the affidavit must attest that the decedent left no surviving spouse.
- If the affiant is an adult descendant of the decedent, the affidavit must attest that the decedent left no surviving spouse and no surviving adult child.
- If the affiant is a parent of the decedent, the affidavit must attest that the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant.
- The date of death and the address of the decedent’s last residence.
- A statement attesting that the total amount in all qualified accounts held by the decedent in all financial institutions known to the affiant does not exceed an aggregate total of $1,000.
- A statement acknowledging that a personal representative has not been appointed to administer the decedent’s estate and attesting that no probate proceeding or summary administration procedure has been commenced with respect to the estate.
- A statement acknowledging that the affiant has no knowledge of the existence of any last will and testament or other document or agreement relating to the distribution of the decedent’s estate.
- A statement acknowledging that the payment of the funds constitutes a full release and discharge of the financial institution’s obligation regarding the amount paid.
- A statement acknowledging that the affiant understands that he or she is personally liable to the creditors of the decedent and other persons rightfully entitled to the funds under the Florida Probate Code, to the extent the amount paid exceeds the amount properly attributable to the affiant’s share.
- A statement acknowledging that the affiant understands that making a false statement in the affidavit may be punishable as a criminal offense.
All of this is explained in section 735.303(3) of the Florida Statutes.
Who can use an affidavit to gain access to a deceased account holder’s assets?
Only certain family members of the decedent are potentially eligible to receive the funds without the need for a probate proceeding. These family members include:
- The decedent’s surviving spouse;
- An adult child of the decedent if there is no surviving spouse;
- An adult descendant of the decedent if there is no surviving spouse and no adult child; or
- A parent of the decedent if there is no surviving spouse, no adult child, and no adult descendant.
Thus, there is a priority order regarding family member eligibility. If a surviving spouse exists, then no other family member will qualify. If there is no surviving spouse, then all adult children now have priority.
This limitation is found in section 735.303(1)(a) of the Florida Statutes.
What kind of accounts can be accessed by using an Affidavit to Obtain Bank Property of a Deceased Account Holder?
The affidavit can only be used an account in the sole name of the decedent without any pay-on-death or beneficiary designation. This is established in section 735.303(1)(b) of the Florida Statutes. In addition, section 735.303(2) states that all of the decedent’s accounts at that bank must have a combined total of less than $1,000.00. Thus, accounts with beneficiary designations, joint owners, are more than $1,000.00 will not be eligible for the use of an Affidavit to Obtain Bank Property of a Deceased Account Holder.
What should I do if a bank refuses to honor an Affidavit to Obtain Bank Property of a Deceased Account Holder?
Before you do anything else, you should check to see if all requirements for the affidavit are truly met. It may be that the bank is correct in refusing to honor the affidavit. There are a number of ways for the affidavit to become unavailable. It can be helpful to retain a probate attorney for this purpose.
However, sometimes the requirements of the affidavit are met and a bank will still refuse to honor the affidavit. Unfortunately, banks can sometimes be difficult. I have seen bank managers and employees say things that are demonstrable false to my clients. To avoid this, I prefer to give my clients a letter along with the affidavit. The letter explains my client’s role, why the affidavit is appropriate, the law being relied upon, and the requirements of the statute. It can also be helpful to include a copy of the statue with the letter. If the bank still refuses to honor the affidavit, the only option left is to get a court order.
Is there a time limit to use an Affidavit to Obtain Bank Property of a Deceased Account Holder?
The Affidavit cannot be used until at least six months after the decedent passed away. After six months, the affidavit can be used if all other requirements are met and the bank has the money in the account.
Should you bring anything else to the bank with your Affidavit to Obtain Bank Property of a Deceased Account Holder?
If addition to the affidavit, you should bring a death certificate for the deceased account holder, a government-issued ID for yourself, and proof of your relationship to the deceased (such as a birth certificate or marriage certificate).
Are banks required to keep a copy of an Affidavit to Obtain Bank Property of a Deceased Account Holder?
Yes, banks in Florida must keep a copy of the affidavit in accordance with their customary retention policies when handling the bank property of a deceased account holder. This ensures that the affidavit is available for reference if needed by surviving family members or for legal purposes. This requirement is found in section 735.303(7) of the Florida Statutes.
Is a bank required to verify the truth of an Affidavit to Obtain Bank Property of a Deceased Account Holder?
No, a bank is not required to verify the truth of an Affidavit to Obtain Bank Property of a Deceased Account Holder under section 735.303(5), Florida Statutes. The payment of the funds by the financial institution to the affiant constitutes the financial institution’s full release and discharge regarding the amount paid. Additionally, a person does not have a right or cause of action against the financial institution for taking an action, or for failing to take an action, in connection with the affidavit or the payment of the funds
Can using an Affidavit to Obtain Bank Property of a Deceased Account Holder result in any personal, financial, or criminal liability?
Yes, using an Affidavit to Obtain Bank Property of a Deceased Account Holder can result in personal, financial, or criminal liability.
Under section 735.303(6), Florida Statutes, the family member who withdraws the funds using the affidavit is personally liable to the creditors of the decedent and any other person rightfully entitled to the funds under the Florida Probate Code. This liability extends to the amount paid that exceeds the amount properly attributable to the family member’s share.
Additionally, under subsection (8) of the same statute, if a person knowingly makes a false statement in a sworn affidavit given to a financial institution to receive a decedent’s funds, they commit theft. This act is punishable as provided in section 812.014 of the Florida Statutes, which outlines the penalties for theft