Volume XXXIII - February 2021

 THREE PART SERIES:

FREQUENTLY ASKED PROBATE AND ESTATE RELATED QUESTIONS

PART THREE

By: Norman W. Nash and Yvette Rodriguez Brown

Question 1: My father died and he has money in a bank account but the bank will not tell me how much money is in the account without some kind of probate papers.  Is there another way to find out how much is in the bank account?

Answer: It depends on the financial institution.  A new law became effective on July 1, 2020 that permits financial institutions to disclose to certain family members bank account balances. Due to privacy laws, financial institutions generally cannot disclose account information to anyone except the account holder, a person with a power of attorney for an account holder who is alive, or a personal representative who has been appointed by a probate court for a deceased person. The new law permits, but does not require, financial institutions to disclose to a “family member” the existence of and amounts on deposit in any “qualified account” of a decedent. A “family member” means:

1. The surviving spouse of the decedent;

2. An adult child of the decedent if the decedent left no surviving spouse;

3. An adult descendant of the decedent if the decedent left no surviving spouse and no surviving adult child; or

4. A parent of the decedent if the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant.

Note: there is only one class of family member that has rights under the new law. For example, if there is a surviving spouse then only the surviving spouse has rights under the new law and no one else. Likewise, if there is no surviving spouse but an adult child then the adult child, or children if there is more than one adult child, has rights under the new law and no one else.

A “qualified account” means a depository account or certificate of deposit held by a financial institution in the sole name of the decedent without a pay-on-death or any other survivor designation.

Thus, if you are the appropriate family member and there is a qualified account then the financial institution may, but is not required, to disclose the amount on deposit. Many financial institutions are unaware of this new law and may refuse to disclose the information.  Consult qualified counsel if that occurs.

Takeaway: The takeaway is that if you are the appropriate family member and there is a qualified account then the financial institution may, but is not required, to disclose the amount on deposit.

Question 2: My mother died and she had only one bank account with about $800. My sister and I are her only heirs.  Can we get that money without going to probate court?

Answer:  Yes, under the following conditions.  As part of the new law discussed above, without a court order, a financial institution may pay to a “family member” amounts in “qualified account” if: the total amounts on deposit do not exceed a total of $1000; there is no Will; and at least six months have passed since the decedent died. An affidavit including certain information required by the new law must be given to the financial institution in order to use this procedure.

Some banks are not aware of this law and may refuse to disburse funds.  Consult a qualified attorney if that happens.

Takeaway: The takeaway is that you may be able to obtain an amount up to $1000 without any probate court proceedings under certain circumstances.

Question 3:  My mother died. She has a safe deposit box and I don’t know what is in there but the bank will not let me look in the safe deposit box without a court order or other probate court papers. How can I find out what is in there?

Answer:  A safe deposit box may be opened without a court order or any probate court papers. There are with strict limits on who may open a safe deposit box and what can be done with the contents. If the bank is presented with satisfactory proof of death, any of the following persons can request that the safe deposit box be opened: a spouse, a parent, an adult descendant, or a person named as a personal representative in the decedent’s Will.  Unlike the new law discussed above, any of the foregoing persons can have a safe deposit box opened.

The procedure to open the safe deposit box is precise. Only an employee of the bank may remove the contents. If there is a Will, the bank may only deliver it to the probate court where a probate case may be filed. If there is a deed to a burial plot or burial instructions the employee must give them to the person who requested that the safe deposit box be opened. If there is a life insurance policy it can be delivered to the person or persons who are the beneficiaries. All other contents must remain in the safe deposit box pending probate proceedings. The bank employee must make an inventory of the contents and list to whom anything was delivered.

Some banks are not aware of this law and may refuse to open the safe deposit box.  Consult a qualified attorney if that happens

Takeaway: The takeaway is that a safe deposit box can be opened without any court orders.

Norm Nash has been practicing law for over thirty years in the areas of probate, real estate, commercial, corporate and business transactions. He attended law school at the University of Denver where he graduated in the top fifteen percent of his class, was an editor on the law review, and earned the AmJur award for the highest grade in ethics.

Yvette Rodriguez Brown is a Stetson University College of Law graduate with over 20 years experience in Wills & Probate, Bankruptcy and Local Government.  She also speaks Spanish.

This article is for informational purposes only and you should seek professional legal advice before taking any action based on this article.  Further, this information is subject to change due to the rapidly changing legal, political and business environment.

 Like us on Facebook to see all that we do in the community!