When someone passes away with a bank account that stands solely in his or her name without a beneficiary designation, the bank will likely "lock" the account upon learning of the death of the account holder. Only upon presentation of proper legal paperwork will the account be "unlocked" and distributed to the person(s) with authority over the deceased person's affairs. There are basically two ways to gain access to the account. One way is to file a petition with the probate department of the Superior Court where the deceased person lived and obtain a court order. Alternatively, if the deceased person's total estate is valued under $150,000 it may be possible to access the account through a simple affidavit procedure.
An affidavit is a statement of facts made under the penalty of perjury. In computing the $150,000 estate limitation for use of the affidavit procedure, the money being sought is included. However, certain assets the deceased may have owned at the time of death are excluded. The main exclusions are property held jointly with one or more persons (either real estate or multiple-party bank accounts), assets payable on death to a beneficiary (such as life insurance or retirement benefits), cars and property held in a living trust. If the deceased person owned a home that is not in a living trust (other than a manufactured or mobile home) the $150,000 maximum is usually exceeded simply because there are few, if any, homes in California worth less than $150,000.
The persons entitled to use the affidavit procedure are the beneficiaries under the deceased person's will, the deceased person's heirs at law if there was no will, or, if the deceased person had a living trust, the successor trustee of the trust. If there are multiple beneficiaries or heirs at law, all of them must sign the affidavit.
The affidavit must contain specific allegations required by law and a certified copy of the death certificate must be presented along with the affidavit. The affidavit must be executed under penalty of perjury under the laws of the State of California and it is advisable to have it notarized. Most banks have a form affidavit that can be filled out and used when appropriate. Also, attorneys familiar with handling decedent's estates can draft such affidavits. One important caveat is that the affidavit cannot be presented until at least 40 days have elapsed since the death of the deceased person.
The affidavit procedure is useful not only to unlock bank accounts but can be presented to any person or entity holding property of the deceased person. Thus, it can be used to obtain money from an employer, an investment company, or an inheritance from someone else's estate so long as the countable assets of the deceased person do not exceed $150,000.
© 2013 by Marlene S. Cooper. All rights reserved.