When someone passes away, particularly when it is a sudden or an unexpected death, it can be a shocking and chaotic time for their family and friends. Fortunately, Florida Probate Law affords protection for the decedent’s interests immediately upon their passing.
Under the law, as soon as a personal representative is appointed by a probate judge, the “P.R.” is then authorized (and obligated) to immediately begin gathering the assets of the decedent and determining the debts that are due and owing by and to the estate.
The first few days or weeks after appointment can be extremely busy for the personal representative, including dealing with the checks and payments that were in process at the time of the decedent’s death (the personal representative will also be publishing in the local paper a notice to creditors and sending a notice to creditors to any known creditors informing them to file a claim before the deadline).
Florida Statute 674.405 and the Personal Representative of a Florida Estate
The Florida Legislature has passed a law that controls in this situation. Florida Statute 674.405 states:
Death or incompetence of customer.—
(1) A payor or collecting bank’s authority to accept, pay, or collect an item or to account for proceeds of its collection, if otherwise effective, is not rendered ineffective by incompetence of a customer of either bank existing at the time the item is issued or its collection is undertaken if the bank does not know of an adjudication of incompetence. Neither death nor incompetence of a customer revokes the authority to accept, pay, collect, or account until the bank knows of the fact of death or of an adjudication of incompetence and has reasonable opportunity to act on it.
(2) Even with knowledge, a bank may for 10 days after the date of death pay or certify checks drawn on or before that date unless ordered to stop payment by a person claiming an interest in the account.
Here, the law is clear that when a bank customer passes away, both the payor on the check and the bank still have the right to “accept, pay, collect, or account for proceeds of its collection until the bank knows of the fact of death . . . and has reasonable opportunity to act on it.” Thus, the check can still be taken in payment if there has not been notification of the death of the payee.
What About After There Is Notice Of Death?
Even if the bank is aware of the person’s passing, it has 10 days after the date of death to pay or certify checks drawn on or before the date of death. There is an exception here: the bank cannot process that check if it has been ordered to “stop payment” by the personal representative, as “a person claiming an interest in the account.”
Personal Representative and the Decedent’s Bank
As soon as possible after being appointed to the job, a prudent personal representative will investigate what checking accounts and savings accounts were held by the decedent. Going through personal files both on paper and online will be necessary here to make sure all the accounts are found. It’s not surprising for folk to have dormant accounts or rarely used bank accounts with substantial sums in them.
After finding the decedent’s accounts, the personal representative needs to notify all the financial institutions of their customer’s passing. An official notice of the death with a date of death will be sent to them.
A cautious personal representative, concerned that there may be a missing bank account out there, may go one step further. She may send letters to all the local financial institutions notifying them of the decedent’s passing and the date of death. This letter will include a request that if the bank or credit union does have an account with the decedent, that it notify the personal representative of the account and its current balance.
Stopping Payment on Uncleared Checks
This is the point where the personal representative of the estate may order the bank to stop payment on an uncleared check. As explained above, that order must be respected by the financial institution. Which will leave that debt unpaid, even if the decedent wrote a check with every intention of making that payment.
If the personal representative does order an uncleared check to not be paid, what happens to that creditor? That creditor must file a claim against the estate for payment.
The “stop payment” does not mean the creditor is disrespected. It means that the personal representative is trying to get a handle on the estate’s assets and shutting the lid on the bank account is a step in that direction. It’s important in finalizing the estate’s inventory to have a bottom line for each of the decedent’s bank accounts.
Moreover, since the personal representative owes a fiduciary duty to the decedent’s creditors as well as the beneficiaries of the estate, he or she cannot just “stop payment” on every check out there. A “stop payment” order is usually issued only in situations where the personal representative is concerned there may not be enough cash in the estate to cover its debts (it’s possibly insolvent) or where there is something fishy or unusual about the payment that needs further investigation by the personal representative.
What About the Interest on the Account?
The amount of interest on the bank account is important both for probate reasons and in some cases where an estate tax may apply. The personal representative needs to make sure that the bank account is paid the proper amount of interest due, regardless of the death of the account holder. Here, the personal representative must figure out the amount of interest due on the account as of the date of death. This is recorded as an asset in the estate’s inventory.
What Should You Do?
If you believe you have an issue with a personal representative related to an outstanding check, a good piece of advice is to at least talk with a Florida probate lawyer to learn about your rights. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation to answer your questions.
Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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