FAQs: Affidavit To Obtain Bank Property of Deceased Without Court Proceedings
The road to settling a decedent’s affairs after their passing can be complex and confusing. We frequently receive inquiries, where the estate assets are of such a nature that a probate would be uneconomical, meaning it may cost more than the asset or assets are worth. Although probate may be necessary depending upon the value of certain decedent's assets, there is one tool at the survivors’ disposal to avoid probate under certain circumstances and that is an Affidavit to Obtain Bank Property of a Deceased without Court Proceedings.
What is an Affidavit to Obtain Bank Property of a Deceased Account Holder?
Florida Statute 735.303 provides for an Affidavit to Obtain Bank Property of a Deceased Account Holder. This Affidavit is a document that would be presented to the financial institution holding the bank account(s). If the Affidavit applies to a specific situation, the bank or financial institution holding the bank account(s) should release the funds to the qualified individual presenting the Affidavit.
The affidavit must be a notarized Affidavit signed under oath before a notary, under penalties of perjury, stating that all of the statements in the affidavit are true. In addition, a certified copy of the death certificate must be attached to the affidavit.
Who qualifies to use this Affidavit to Gain Access to Deceased's Bank Property?
Certain family members of the decedent qualify for payment of funds without a court proceeding. These surviving family members include:
- The surviving spouse of the decedent,
- An adult child of the decedent if the decedent left no surviving spouse,
- An adult descendant of the decedent if the decedent left no surviving spouse and no surviving adult child, or
- A parent of the decedent if the decedent left no surviving spouse, no surviving adult child, and no surviving adult decedent.
What kind of accounts qualify an Individual for these Small Estate Affidavits?
The affidavit applies to “Qualified accounts,” i.e., those solely in the decedent's name without a survivor designation.
Accounts that this Affidavit may be used for collecting the bank properties are depository accounts or certificates of deposit held by a financial institution or a bank account, the descendent being the sole owner.
These accounts do not have a pay-on-death or any other survivor designation.
How does an Affidavit to Obtain Bank Property of Deceased Account Holder work?
An Affidavit of this nature allows a bank or credit union in Florida to pay a qualified family member the funds in the decedent’s bank accounts.
Financial Institutions use this affidavit along with other documents:
- To confirm the relationship of the decedent with the deceased.
- To confirm the death of the deceased bank holder and require notarization.
Once submitted to the bank, funds are released. Additional documentation may be required as mentioned in the later section of this blog, such as a small estate affidavit, proof of identification, and proof of relationship to the deceased.
How much money can be in the account?
Banks can release the funds in all of the decedent’s qualified accounts so long as the total amount of the funds does not exceed an aggregate total of $1,000.00.
When can an Affidavit to Obtain Bank Property of a Deceased Account Holder be used?
Banks are only permitted to release funds under this Affidavit six (6) months after the day of the decedent’s death. Further, the Affidavit only applies where an individual dies without a valid will. i.e It is only valid in the case of interstate estate successions.
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What Do I Provide to the Bank to Have Funds Released?
In addition to the Affidavit, a family member must also provide a certified copy of the decedent’s death certificate evidencing the fact that the individual passed away. Along with the Decendent's death certificate other documents that can come in handy to you are:
- Affidavit of Heirship or Small Estate Affidavit: It is a legal document in which you declare your relationship with the deceased and your right to claim the money. The affidavit usually includes details such as the deceased person's name, date of death, names of heirs and relationship to the deceased, and a statement claiming your right to claim the money.
- Proof of Identification: You must provide valid identification to prove your identity. This could be a driver's license, passport, or other government-issued ID.
- Proof Of Relationship to the Deceased: If you claim the funds as an heir, you may need to provide documents proving your relationship to the deceased, such as a birth certificate or marriage certificate.
What information to keep in these affidavits to make them legally valid?
To receive the funds, the family member’s affidavit must include the following information:
- A statement attesting that the affiant is the surviving spouse, adult child, adult descendant, or decedent's parent.
- 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 the decedent’s parent, the affidavit must attest that the decedent has no surviving spouse and adult child, and no surviving adult descendant.
- The date of death.
- 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 $1,000.00.
- A statement acknowledging, that a personal representative is not appointed by the court to administer the decedent’s estate.
- A statement attesting that no probate proceeding or summary administration procedure has been commenced concerning the decedent’s estate.
- A statement acknowledging that the affiant does not know of any 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 Qualified beneficiaries and other persons rightfully entitled to the funds under Florida law, 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 by the law as a criminal offense.
Suggested Read:
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Does the bank have to determine whether the contents of the Affidavit are true?
No. The financial institution is not legally required to determine whether the affidavit is accurate. Rather, payment of the funds constitutes the financial institution’s full release and discharge regarding the amount paid. Other individuals would not have a cause of action against the bank for taking action or failing to take an action, related to the affidavit or payment of the funds.
Does using this Affidavit result in personal financial or criminal liability to the family member?
Yes. A family member receiving funds under this Affidavit is personally liable to the decedent’s creditors and any other individual rightfully entitled to the funds under Florida law. This individual would be liable to the extent the amount paid exceeds the amount properly attributable to the family member’s share of the decedent’s estate.
Further, knowingly making a false statement in the Affidavit given to the bank to receive the decedent’s funds is considered to be committing theft and is punishable by Florida law.
Does the bank have to keep a copy of the Affidavit?
Yes. The bank must maintain a copy of the Affidavit. If the decedent’s surviving spouse or descendant requests a copy, the institution may provide a copy of the Affidavit to the individual requesting the same.
Conclusion:
Affidavit if used properly, can be a cost-effective method of recovering funds held by banks. However, using the Affidavit can open an individual to personal financial liability and criminal charges if used with criminal intent or for fraud. If you aren’t sure whether you qualify to use this Affidavit, contact our office to schedule your complimentary consultation with one of our qualified Florida estate and trust attorneys today.
