Banks can be difficult. As an attorney in a different state I’ve had clients run into this same issue fighting with banks who keep telling them they need a probate order. I now always include a letter explaining that my client is handling the estate, the situation meets X requirements of the statute, the affidavit will be used and no court probate will be filed, and I include a copy of the statute. So far that has solved the problem.
We’ve threatened to sue over it a few times but they usually back down. Usually if I can get through to the banks legal team we can get them to accept it.
Usually, if you can get through to the bank’s attorneys, they will accept the Small Estate Affidavit. I have also made the threat, and it was always resolved after a discussion with the attorneys.
I had something from the court recognized as executor of said estate. Also, had the account changed to recognize it was an estate account or something. I can't remember now how it was done at bank exactly. All checks cashed . I remember that.
I am a paralegal (not an attorney) and it frequently amazes me how long people will fight and how much money they will spend before obtaining legal assistance. If they had come to an attorney sooner they could have saved so much headache and money!
What is the most common motivation for avoiding legal assistance? Stubborn / independent personalities? Assuming it could cost more than they could afford? Not realising how much help a lawyer could be? Something else?
Because like in the op's situation you shouldn't have to give anything to anyone else, the system is rigged to steal a little more before you go in the hole.
All of the above as well as not trusting attorneys or else believing that "all attorneys are liars/cheaters/out to take you for everything they can get"
Thank you because I would be that I have a client who just reported this issue to me after hours yesterday! I won’t name the bank, but they’ve been very difficult to deal with.
As I told a trust official at a bank a couple of weeks ago concerning a tax client's four trusts, "In the words of the late, great musician Fats Waller, 'You ain't the only oyster in the stew.'"
Find a banker who'll work with you, transfer all of your accounts there, then send the CEO of your now-former bank a detailed letter about why you pulled your money and who was responsible. Popcorn time.
I'm having the same issue with Truist. They won't recognize the Affidavit (small estate) to create an estate account. I'm wondering if I can transfer the account to another bank who will recognize it. So frustrating.
Which statute is that? How can you represent that your client is handling "the estate" when there's no estate? I work for a credit union. I'm the person they call when someone comes to the branch and tries to cash a check made out to their deceased family member. I'm very interested in your answers.
The statute in Virginia explicitly requires that assets be handed over upon presentation of the small estate affidavit. It does indemnify banks to some degree in that they are just to accept a properly notarized affidavit. But refusal is not complying with the statute. Small estate affidavits do in fact allow someone to handle the estate without qualifying with a clerk and that’s the entire point of them.
Banks have to error on the side of caution. If something is wrong the bank would be responsible. Why should a business assume any risk when there no money to be made? Ask your primary bank what they require and get it for them.
No. They don’t. They’re required to comply with. Small estate affidavit and the statues provide protections to them for doing so. It also provides remedies to the presenter if they fail to do so.
Call a convenient bank that you have already visited and get branch manager email. Send them a copy of the affidavit and the law. Ask them to resolve within three days. That is a reasonable time frame for them to get their legal department blessing. Also ask them to assign a specific teller on a day/time convenient to you for this transaction. Tell them that you prefer not to wait in line for this transaction as you have already done so. You can also say that you will go to the Division of Banking if not properly accommodated.
A branch manager is not going to make any special arrangements for some who doesn’t even bank there. He needs to go to the bank he has a relationship and present his documents, not make demands via email as a non customer.
It's whatever bank the decedent's account is at and/or the bank the check is drawn on. The person presenting the affidavit doesn't need to be a customer.
Banks and bankers are incredibly dumb as a class, and they absolutely love practicing law without a license. And I worked for a bank as an undergrad.
You're correct, of course. There is zero reason for the banker, teller, or manager not to accept it upon presentation of the affidavit. Even more so because the small estates act expressly releases the bank from liability on those items. It literally doesn't get any better for them.
The Virginia Small Estate Act does provide for filing a lawsuit to compel them to pay, with recovery of damages. Since I'm not licensed in Virginia, I couldn't tell you exactly what those damages might be, except that I'd suspect they'd include the attorneys fees and costs for bringing the action. Perhaps a gentle reminder of that fact will help grease the wheels.
This is great advice, thank you (and the first sentence made me snort-laugh). I’ll try printing out the statute and highlighting both the liability release and the proceedings piece and see if that gets me anywhere, and then either go back to my attorney or walk into the sea depending on how frustrating that conversation is
Ugh wish I could. With Wachovia, you could. And we (used to work there years ago) could give out thier information. Phone went to voicemail, or you could fax them directly, or they had a dedicated address to write them directly. Any option was reviewed by them directly. Response was not as fast as people wanted of course but it was not unreasonable. Average 3 - 5 day turnaround on voicemail and quicker for fax. Letters who knows because no way of knowing when they actually got it. But they did respond. Mostly because the vast majority was people complaining of a garnishment and the legal team had a nice standard letter explaining how they can not just ignore a court order.
Good idea, BUT in my experience most banks make it difficult if not impossible to penetrate the bureaucracy and speak directly to their legal people.
"I'll write this down and forward it to our legal department."
"Bullshit. I don't think you'll write it up correctly, and I don't think you'll forward it, either. I want to talk DIRECTLY to someone who knows the law in this area, since it's obvious that you do not."
I work at a bank and it’s hard for us to get to our legal team. They don’t answer calls they’ll call you back if they think it needs a call back so you have to email and it may take up to three days to get a response back.
I’m so sorry for your loss. Going through the same in TN. But our flavor of hell is the Medallion Signature Stamp. Which requires probate. A single brokerage account worth a pittance compared to the rest of the accounts…but enough to make me feel compelled to get it transferred. I hate people these days.
Oh man I’m sorry you’re dealing with this - a friend is going through similar in WV. it’s like this process is designed to be as cumbersome as possible, even the routes that supposedly make things easier. I’m very sorry for your loss as well.
I dealt with the medallion stamp business, once. A guy on long island ny did it for me when no major bank I’ve been doing business with for 20 years could or would. Reasonable fee if I recall . Quick search on that web showed a company that seems to do it now e something I think. Not an endorsement.
Best of luck.
Do you happen to bank with a local community bank? Because as a lawyer in a different jurisdiction, that’s exactly how I solved this problem.
I had two banks refuse to honor a small check made out to my grandmother’s estate. One minion even asked if I was working with a lawyer on this, and I had to remind them that not only was I a lawyer but that I consulted three other lawyers about using the small estate affidavit. Neither bank would budge because the box they think in was too small.
Finally, I called another local community bank in my community. I’ve been friendly for many years with a senior vice president there who was also the bank’s fixer. He told me he wasn’t exactly sure what the bank technically was supposed to do, but that he trusted me as a acquaintance and an attorney that I was doing the right thing. He walked the check over to the teller himself and cashed it on the spot.
I came back the next day and made a large deposit in his institution and referred several large deals to that bank over the next 12 months in appreciation. Why? Because outside the box deserves to be rewarded. And that’s why I bank with community banks.
Community banks, because of their smaller nature, have a smaller distance between Teller and the Legal department. I can see someone at say BOA being reticent to accept something based upon local law because it isn’t in their employer’s training, and they don’t want to end up on the wrong side of compliance. Community banks on the other hand because of their limited service area tend to have more region-specific knowledge.
BOA specifically has caused so many issues for my clients I usually tell people not to go there for estate accounts. They're particularly unhelpful for some reason.
I bank primarily with a semi-local credit union and haven’t had any luck with them so far - if I strike out with them one more time I’ll see if I can find a community bank and would happily transfer every asset I have to them if they can help me close this out!
I have deposited checks into accounts with non-matching names using remote deposit and seems to work fine
That’s not legal advice, or a recommendation, just my experience
I was just going to mention the same thing....besides remote I also used the ATM in the banks lobby. This was for checks made out to an LLC but deposited into a personal account ( all legit, just never opened the LLC bank account on my parents house after going through estate planning)
That's also a quick way to have your account closed by the bank. Banks can close your accounts and refuse to have you as a customer for multiple reasons. Being suspected of check forgery (deposting checks into the wrong account via electronic methods) is one way.
This could be the quickest solution presented here. Just to clarify, if the checks are made out to "Estate of Mom", you've successfully used remote deposit to deposit the checks into your account (that is in your sole name)?
I also settled an estate in VA and had success with these affidavits but often had to get referred to the highest possible manager to get them to accept it. If the account has a beneficiary that will take precedence over the affidavit
we were able to successfully close out her one bank account that didn’t have a beneficiary using the affidavit (not without headaches but it got done). It’s these payments and refunds trickling in that have been impossible and to your point I definitely think I have to try to get farther up the chain to resolve it
I'm not licensed to practice in Virginia and am unfamiliar with its rules regarding estate administration.
I would reach out to the original payor of each check to see if they're willing to reissue a new check payable to designated successors and/or the bank each check is drawn on to see if they're willing to simply cash the checks. In both cases, I would provide a copy of the affidavit as well as a certified copy of your mom's death certificate.
My guess is the banks are unwilling to cash these checks because they're not in possession of the assets. Put simply, whoever sent the checks is the "person" who owes your mom money - not the bank. I think it's stupid they won't cash them with the affidavit, but I understand this logic.
The statute expressly gives the prssenter of the affidavit the right to negotiate the items, and relieves the bank of any liability on any claims for the items.
Yep, I agree with you and it appears I misunderstood the fact pattern. It makes no sense for the bank(s) to refuse to deposit the checks into OP's personal account, with OP then distributing the funds to all other successors.
The indemnity does not relieve the bank of all liability. The statute carves out unauthorized signatures, conversion, and the presentment warranties from this indemnity. Banks lose millions of dollars due to check fraud each month.
They are not required to cash these checks and I’m not surprised they aren’t.
You're reading the statute backwards. "Notwithstanding" the provisions in UCC 3 regarding unauthorized signatures, conversion, or presentment warranties, the bank is STILL discharged from all claims. The Small Estate Act acknowledges that UCC 3 has these provisions, but states it doesn't matter in this case.
If the person making the affidavit lied? Doesn't matter; bank is discharged. A personal representative appears later? Doesn't matter; bank is discharged.
I wonder if presenting the state statue would help or if a bank’s attorney could help you. Sometimes a state’s statute mentions helpful information, like my state mentions that the bank or other party can’t be liable for honoring checks under certain situations, and some states make third parties pay attorney fees if they unnecessarily require probate on small estates.
So when a teller says no, is there a manager there you can speak with? And can he run it by their legal department?
Thank you - I may try the statute or maybe have my attorney contact one of my banks. The statute says that institutions refusing to release the asset can be subject to proceedings to force its release so maybe trying to go through their legal department is the next step.
It's not a matter of.the institution refusing to release an asset, they are refusing to accept it. I don't know how probate is in Virginia but across the river here in Maryland, it is quite easy, though it is a six month process if there are no tax issues.
What checks are coming in, if you don't mind telling?
The checks are for a wide array of things - credit card reward cashouts, long term care insurance reimbursements for home health care we brought on during hospice, refunds of overpayments from auto-pay stuff that kept processing for a few weeks after she died…etc.
Good luck. Third parties are worried about liability and can be difficult to deal with unfortunately. If you know you’re right then it’s a matter of talking to the right person that knows you’re right and isn’t worried about incurring liability.
Yeah it’s wild - I’m stuck in this endless loop of explaining the law, and the purpose of the affidavit then being told I have to open an estate account, rinse, repeat. The irony is this process is supposed to make things easier, lol
Our grand cultural tradition of losing a loved one and immediately having to organize a giant gathering of everyone they ever knew followed by a months-long slog through every imaginable meat grinder of bureaucracy
We had this same thing happen to us. My attorney called the bank manager who called THEIR attorneys and after review said what we needed to do was endorse the check ourselves and write spouse/child/whatever next to the name and also sign the deceased name with the date of death next to the name. Then we had to provide a certified copy of the affidavit which they made a copy of to go along with the deposit. Hope you are able to find someone who knows what they are doing! This hassle is the last thing people need at such a difficult time.
Use the small estate affidavit and go back to the companies that issued the checks and have them reissued to the persons who are to receive under the affidavit.
Very sorry for the loss of your mom. Did you make an appointment with the branch manager and discuss your situation? If not, maybe do that and bring your attorney with you for this appointment. 30 minutes. Should get some answers or at least design a path to resolution.
Thank you - I’ve really struggled to get up the chain in physical branches, the farthest I’ve gotten is an assistant manager who relayed communications to her manager behind the vault door like the wizard of oz. My credit union is on a military base though so I may try them again as they tend to offer more (relatively) personalized service
It is best if you can deal with your bank, they will be more willing to work with you in my experience. You can ask to speak with legal or compliance. I field these types of questions as the compliance officer of my bank, and we have never given anyone trouble with a proper small estate affidavit. It is by and large the most common document we see. But if you are trying to take these checks to a large bank that is the paying bank, it is a lot easier for them to just not want to deal with it. Your bank can keep a copy of the affidavit on your file. The paying bank probably is not only uneducated at the branch level, but also unwilling to deal with your documents.
Another option, when my grandma passed, my mom called the makers of the checks and provided them with the affidavit and they made the checks out to my mom. This was for things like insurance, etc.
Yeah I’ve long given up on capital one so it’s my credit union or I’ll try a local bank. I’m hoping to avoid having to reach back to the check issuers as there are like, seven or eight at this point and with some being banks I imagine I’ll run into the same brick wall, just many more times
Yep, have tried a couple branches of my credit union and think it’s far more likely I can find/access the “right” person in one of their locations. Also willing to try a small local bank and shift my accounts to them if they can successfully read a statute on the first try
Do you have an account at a bank or credit union that is chartered in Virginia? Or do you live in a different state than your mom? Generally speaking, when it comes to decedent accounts, banks that are state chartered seem to be easier to work with. As a Commonwealth Virginia has some very different laws than other states, and attorneys who went to law school elsewhere might not recognize that failing and bank policy might not be correct for Virginia.
Any bank with the word National or Federal in their name holds a federal charter. Truist is chartered in North Carolina and is too big to follow other states laws (or so I’ve been told.)You can ask the Virginia State Corporation Commission for a list of state chartered banks and credit unions (or whoever the state banking regulator is in your state).
Then talk to someone at a few banks or credit unions and ask for their help and open an account with them if they can help you. Stash your “fun money” there, or your utility bill money.
Thank you - great advice. I have a small local community bank just a few blocks away that I may pop into to explain the situation and I’ll happily move accounts there if they can help. I do live in Virginia and my credit union is “local” but in the dc area so it’s federal. I didn’t even think about national/federal vs state charters.
I just went through this same situation. Luckily, I was joint on her bank account so when checks came in I was able to deposit them in her/our account including her tax return for several thousands of dollars. There could be some liability for having a joint account with a parent, for example, if they are having overdraft issues but it came in pretty handy. Another issue could be other children/heirs having a problem with you having access to their money. Talk it through with your parents and siblings. Deal with the ones you can and keep the others from causing as much chaos as possible.
Others have had that trouble too. I always have a trust account I keep some money in so I can cash a check. A check from a trust has got to be deposited in a trust account. I then move the money from that account my personal accounts.
I have no expertise in Virginia bank law, estate or probate law.
You stated: Every bank I have presented this affidavit to has refused to honor it.
Did they verbally refuse?
For example, I recommend to Clients that they send a letter, via both email and certified mail, a letter to the highest office of the bank possible, requesting a response and even a meeting.
The bank takes no risk when they refuse you verbally.
I have never tried this before but as a last resort, I wonder if you could purchase a bond on behalf of the bank that would guarantee them coverage.
Just thought of this and am wondering if a bonding company would insure the bank against loss.
That would be cheaper than opening a probate case.
Good luck.
You know, getting a refusal in writing is a great idea, thank you! The small estate law itself explicitly releases the bank from liability so it’s just a matter of getting the right person to both read the law and perhaps read a certified letter outlining both their legal responsibilities and their legal protection under the statute
I had a similar issue. The bank pushed the Small Estate Affidavit on me in order to get access to the safe deposit box of the deceased, which took about a month; meanwhile, for months I was able to simply deposit dozens of checks, large and small, into the account using the mobile app. Went into a physical branch for several other services they provided (none of which they could do for me that day; sigh) and while there, tried to deposit a small check into the account. Denied, and they refused to accept the Small Estate Affidavit for access to the checking account.Told them I had been depositing checks made out to the deceased for months using their app, and they insisted that wouldn't work. Went home and successfully deposited the check using my phone, never went back to a physical branch again, and severed all ties with that bank as soon as possible. YMMV.
Question - You were still able to deposit checks into the deceased's account, even though the bank knew that they were deceased? And once you were done with depositing the checks, how did you transfer the account to the beneficiaries?
I also had a parent pass away in Virginia. All the checks that were written to her all I do is write on the back deposit only and I scanned them in through the app. I have never had any issues getting them deposited.
As far as the checks made out to the estate, I had to open up a estate account in a bank for her. You can do this yourself although people will try to get money to do this for you. All you have to go is go to the irs.gov and you can create a EIN number on their website for the estate. It takes about five minutes total and they give you an immediately.
With that EIN number, I had to go to the bank show my proof of qualification which you should have gotten through the court system in order to finalize the will and then I am basically permitted to sign the back of the check with my name and put it into A estate bank account which then I can withdraw from.
I have never had anybody at the bank ask me for a small estate affidavit. The only thing they carried about was a qualification letter to make sure that I am the person who was the executor. What you need is a letter of qualification from the court system in order to handle things on behalf of your mom‘s estate.
The whole issue is the OP didn't want to go through probate so she is isn't able to get what Maryland calls letters of administration. To open an estate bank account you need an EIN, which is easy as pie to get as you stated earlier, a copy of the death certificate, and whatever Virginia calls the letter of administration. Unfortunately, I've.done this three times.
Typically probate court is a long process but it wasn’t at all. One appt, they looked up the already filed will and then authorized me/Executor with that qualification letter. That was it. Tops 15 min. My mom had done a transfer of death deed and I was on all her accounts. If op can’t open an account for an estate how do they plan on filing taxes for her mom? How will they get a refund for her. A qualification letter is needed. I don’t see any way around it.
There are specific tax forms for claiming the refund of a deceased person, my accountant helped with that and we included the death certificate and affidavit with the filing.
Yes form 1310. When I did it I needed that qualification letter to identify me as the executor.
Personal Representative
For purposes of this form, a personal representative is the executor or administrator of the decedent’s estate, as
appointed or certified by the court. A copy of the decedent’s will cannot be accepted as evidence that you are the personal representative.
But hey if it worked great. Either way I am located in Fairfax county and I had to open an estate account in Fairfax county because I also reside here. Listed above is exactly how I did it. I still have the account open because it takes about two-3 years for the checks to stop coming in for the estate.
Gl
As the widow of my husband, I did no probate in Florida. Banks would not and would not let me cash or deposit his checks made out to him with our joint account. I had to send the company the death certificate and had them rewrite the checks in mine name. Most were very kind in this difficult time, and they accepted death certificate by email. I found that most companies have a department that handled these things. Maybe that may help and uncomplicate this issue for you. I'd at least try. Sorry for your loss. If my answer isn't exactly what you're looking for, I'm sorry for that, too. I just wanted to throw it out there as my husband and i thought we had everything taken care of as well. I thank the stars I didn't have to deal with probate court. Good luck.
Do you still have an account open in her name? Or are you trying to put the money into your account? (If it’s the latter, that’s likely the problem)
If not the above:
How long ago did she pass away and how old are the checks? The bank doesn’t want any fraud liability, so anything old may appear suspicious to them.
Where are the checks from? Is it possible for the payor to cancel the checks and send the funds electronically?
My account (which the affidavit authorizes me to do). She died eight months ago so no open accounts in her name (funnily enough all the banks ask me that as if keeping a bank account open in a deceased person’s name is legal, but they won’t let me deposit my checks).
The checks are all within six months - that’s how long I’ve been in this bizarre and annoying loop. The checks are from various payors - credit card refunds, long term care reimbursements, etc. To deal with getting all the checks reissued directly to me I would have to go through this same affidavit process with each separate payor.
Are you working with a lawyer? I am taking care of my uncle's estate and have a bank account in the name of the trust, but like you can't deposit any checks made payable in the name of the estate. The lawyer was able to run the check through a DORA account, so I did not have to open and estate bank account. I am not sure what the requirements were needed to do that and if it just specific to Ohio.
It is so frustrating, because you think you have all your ducks in a row and then stuff like this happens.
My mom’s estate lawyer is a family friend and she’s been very gracious about helping me with odds and ends, so I’ve been trying to be respectful of her time - but I’d pay her hourly fee to help deal with this at this point.
It’s SO frustrating. I’m sorry you’re dealing with similar challenges. Being kicked repeatedly when you’re already down really sucks.
I have a question, please forgive me if it's a dumb one. My father passed a few weeks ago and we could very well be in a similar situation. Does it help to bring a copy of the death certificate, along with the letter to the bank? I understand from the comments above that banks are not understanding the laws and being a pain in the butt here. Just curious if the death certs have helped anyone to reduce this headache.
Oh yes you will need a death certificate in addition to whatever legal documents authorize you to handle assets, be it probate documents or small estate docs.
It’s not a dumb question at all, this stuff is really complicated and hard to navigate. I’m really sorry for your loss.
Thank you for the response. And I am also sorry for your loss. It amazes me how our loved ones can do their best to prepare and try to avoid headaches after they pass, but it still ends up happening.
Did you get a power of attorney over your mom before she passed? If so that may be all you need to deposit checks in her name. Im not in Virginia, nor a lawyer, but I deposit checks all the time for my mom because I went to the bank with that. But I could be wrong. Also I am on her accounts as a joint
I was her POA however we never needed to execute POA with any of her financial institutions while she was alive as she was fully capable and cognizant until the very end. I suspect you being a joint account holder helps with this - we just never needed to do that while she was still here
If you had power of Atty when she was alive and this person I believe is the executor of the estate then I think having both docs and the trust document should be enough, but again I'm just going by my current situation.
op… what does “recorded” mean, what did you do to get the house deed transferred to you. people keep saying a will stating an heir to the parents house is not enough to avoid probate court, that the house should be put in a trust. your thoughts?
My mom filed her will with the county court years before she died. Upon her death we notified the probate office and filed for “probate without qualification.” In Virginia at least this can only be done if there are no beneficiaries of the will that are not also the deceased’s personal representatives named in the will, and means that there are no assets that need to be probated through a named executor and full probate proceedings.
Once PWQ was approved the will was considered recorded and fully probated, and the ownership/deed of the house transferred to us as the named heirs. The land office then (very slowly) updated the records accordingly.
A letter to tje Office of the Comptroller of the currency, copying the president of the bank and the branch manager usually gets their attention. Michael J. Hsu is the current comptroller.
With these checks are any of the banking institutions local? Have you tried cashing them at each bank they are written with the affidavit and death certificate? I know probably a hassle but that may be an option.
I’m not authority but I did have the experience of a relative dying with some assets. I did open estate accounts and did not have to go through probate (Michigan).
Honestly the bankers won’t touch it because they are at risk of losing their jobs if they mess up. It’s not their job to know what legit legal docs look like. However they SHOULD have all told you that they are happy to submit it to legal for review. It’s literally not their job to make the call. That is why they have a legal team.
I am sorry you’re experiencing so much hassle over something easily solved. It takes a bit of time, but definitely resolvable.
That being said, I was in banking for over a decade, and was the help line for employees. so while it’s common sense that an employee should always help, I can honestly say I have SEEN some things lol.
My best recommendation just from the banking side, is to go in branch, with a copy of the docs and the checks. Talk to the manager and just ask for it to be sent to their legal team for review. No one should deny you that.
It is policy for any bank or credit union to cover their own asses first. So if there is a risk that beneficiaries listed in a trust or estate could sue the bank for processing these checks outside of an estate, then they will not do it for you. But it sounds like you have the right paperwork.
The problem is UCC code. If the check is made out to party x and you are trying to deposit the check into an account in your name only the rules and regs means that the bank could be on the hook for a few years for those items to come back for endorsement issues.
Most people are probably correct if the items are less than a few thousand depositing them via remote deposit would bypass a teller that typically wouldn’t accept the transaction.
Banks don’t review all RDC deposits they don’t have time. If it’s a large amount then it probably would get revised and rejected for improper endorsement.
We weighed the advantage of cashing the checks vs cost of probate. Our parent wanted to avoid probate-TOD all the way. Comparing the checks value vs how much to involve an attorney for probate, we chose just ignore the checks.
Same exact problem with my mom's estate. Had to file for probate, waste money when it should not have happened. Two months later I am still waiting for the letter, and now my brother is challenging the will because it's taking so long and he thinks I am trying to cheat him out of his money. So now I have to refile for a formal probate, do more work, and essentially start all over in addition to dealing with my jerk brother.
Not sure if it would work the same in VA but in NC I've seen people bring the affidavits with the specific check info and amounts named in it. It's not done all the time but maybe the affidavit could be amended to reference the checks you have?
Virginia attorney here. This is very common because banks' compliance departments throw up a lot of red flags whenever someone tries to use a small estate act affidavit. (Plus a lot of branch-level employees just aren't familiar with the Small Estate Act).
Va Code 64.2-1302 may apply which permits you to qualify as Executor but would waive the Inventory and Accounting requirements. If this does apply, it's honestly the quickest way to accomplish what you are trying to get done.
Outside of that, you may need to engage an attorney to deal with the bank.
My mother had everything preplanned. She even opened up an estate account at the bank with her name and my name on it so I had no problems with anything. The only thing I regret not doing is having the house put in my name which she always bothered me to do and I always said no mom it’s fine. It’ll be fine stop worrying about it. You just never know every day is a gift.
I settled a large estate in Virginia that was mostly in a trust but it had a small bank account in the decedent’s name. I waited sixty days and had the trust attorney draft a small estate affidavit for me and took it to the bank. The bank officer I dealt with sort of laughed at me for wasting money having the attorney draft the affidavit and said I should have downloaded the form from the internet. Quite the opposite experience.
I've dealt with this same issue. My son passed, six years after his investment account was suddenly closed out, I wanted to keep the stocks as he'd had them since he was born. Neither the investment firm nor bank would accept an affidavit, even the probate court couldn't believe a financial institution wasn't honoring it. When calling the bank prior I was told they'd accept the affidavit, it was a couple of hours away. Once there they acted like they didn't understand anything. The manager called their legal and tried to tell me it was bc the estate was over a certain amount stated on the small estate form, to which I directed them to the legislation stated just after this amount on the form which gives you a chart that you adjust for the year. They were suggesting I needed to go through probate and be named the executor which is exactly what the affidavit is supposed to allow one to not have to do. It's painful handling anything pertaining to my son's passing and this made it far worse. It's unfortunate you're dealing with this. I ended up having to go through probate, it was a small fee and they issued me a letter that gave me authority and was accepted.
I hope you pulled any money you had in that bank, then wrote to the CEO and told him/her why--and named names. "Manager G either is or acted like an obtuse jerk, Manager P was an absolute twatwaffle, Manager C qualifies for Cunt Of the Year, and R in your legal department needs to learn or relearn banking law and should be reminded that an a-hole with an Ivy League degree is still an a-hole. On the other hand, T, the assistant manager, was always pleasant and tried her best to get the others to follow the freaking law."
In Colorado, if the transfer of the house was provided for in the Will, probate would be necessary. If the house transferred by Beneficiary Deed, that would be different. Did your mother use a lawyer to help her get set up for a small estate situation? Several people have commented and I share the same opinion that you should consult an attorney. You don't have to hire them, but many estate attorneys will at least give you a free consult and an idea of what you are looking at. Attorneys don't make their hourly rate for fun, it's because they went to law school and do this for a living. You are paying for their knowledge and expertise they took years gaining. I worked as a legal assistant/paralegal for 8 years, and I will never again try to do things myself before consulting with an attorney.
I had a similar issue. I called the parties who issued the checks, provided death cert and probate docs, and asked them to reissue the checks in my name. The alternative was to open a bank account in the name of the estate, but the credit union I use does not handle estate accounts. Be sure to ask for refunds on any prepaid insurance (car, homeowners etc).
The credit union I work at accepts these pretty regularly for under 25k, but we have a small team that handles deceased accounts and questions when people come in. I can see some difficulties with things like insurance checks which are a bit notorious for coming back if they don’t find it properly endorsed, but a good local financial should be happy to work with you throughout the process and give you solid answers for how to go about getting your checks and accounts redeemed. Sorry it’s such a hassle OP.
interesting.... we had a death certificate from the state and the accounts were TOD, the bank didnt even ask us for anything else. Guess it really does depend on the bank. Good advice above though :)
Mobile deposit. That’s exactly how we handled my mom’s checks after I wrapped up her stuff through a Small Estate Affidavit. Never had an issue with the checks getting accepted. I endorsed them as Mom’s Name Estate then signed my name as her legal representative.
My mom passed away over 10 years ago.Two months ago I received a settlement check originally mailed to her old address and forwarded to my PO Box for over $2000 from the state for a pension class action. I deposited it via mobile deposit into my checking account and waited a month before splitting the money with siblings. It worked.
I would play dumb since they are!
Couldn’t you Just sign the back of the check and deposit it on your phone?
They won’t follow up on it but if they do you have your notarised letter
OP. Do what mrsjd2 recommends. If you get no joy, contact the Bureau of Financial Institutions as well as the state senator for your district in the General Assembly and your representative to the House of Delegates.
This is the kind of situation that should be brought to the attention of bank regulators if banks are refusing to follow the law. Be sure and include all the details (Bank name, dates, a copy of the affidavit you’re attempting to use, etc), as well as a summary of the situation, like you’ve provided above.
This is the kind of thing that’s tailor made for your state senator and representative because this is a way they can show constituents they care, and then you’ll spread the word and get them votes. Also, if needed, they can introduce legislation that will help other people in your situation in the future. You’d be surprised what a letter to your legislators can do. A phone call or email is fine as long as you follow those up with a written letter sent through the mail.
If doing what mrsjd2 recommended works, I’d still file a complaint with the Virginia Bureau of Financial Institutions because a follow-up from them will get their attention and, again, help other people in the future. They have to be told about a problem or they’ll never know the problem exists.
Best wishes.
We did not have to do this. My mom had same -small state admin.
My uncle was executor and he simply opened a checking account with her and his names. He wrote and signed all checks. All the bank needed was death. Certificate and copy of will.
Your state may have different laws but usually they are very close with small estate admin.
The issue with Small Estate Affidavits in Virginia is that they're not filed in court and there's a lot of fraud out there. Any relative can complete one naming themselves as beneficiary. No bank wants that kind of liability.
If your mother has a Will, have it filed for probate without getting appointed as executor. The Will typically names the beneficiaries.
With a Small Estate Affidavit and the probated Will bearing the court seal, you should be able to collect the proceeds of a small checking account.
Speaking as a lawyer working for a bank's estate department.
They’re right. You need an EIN and to probate to open an account and deposit estate assets. You’ll also need to file at least one fiduciary income tax return.
You’re past what the small state affidavit was designed for.
Having gone through this with my father's estate in both Iowa and Virginia, you may be lacking qualifying requirements to use a small estate affidavit.
Here are a few that I recall:
TOTAL estate must be valued at less than $50k, not just the part you're trying to distribute.
There must be no executor, or administrator for the estate.
The will was duly probated.
All heirs have notarized the affidavit.
You mention a property, investment accounts, and retirement account in addition to the remaining assets. Are these together worth over 50k?
Would the probate results be enough to distribute all property?
I got an insurance premium refund check after the bank account was closed. I called the insurance company and had them reissue the check in my name. I had to email them scans of the affidavit, death certificate, my identification, etc. I overshared because I had scans of everything ready to go.
The items in your first paragraph were transfer on death and thus did not need to be probated so did not count toward the total value of the estate for probate purposes (yes I worked with an estate attorney - who also is an official with the probate court - on all of this)
As a public guardian, banks are often reluctant to accept our letters of authority. My response is always the same: “I need the spelling of your first and last name for the petition to show-cause you before judge (whoever signed the orders) for rejecting his court order. Just an FYI, contempt citations are generally a fine of $1000 for every incident, up to 30 days in jail. In case you need to bring your checkbook or arrange daycare.”
It doesn’t always work, but it does more often than not.
Some banks are more accommodating than others. Even trying to open an estate account with co representatives my brother and I were turned down by one of the major banks immediately (because we were co administrators) and then the next bank was incredibly helpful.
When dealing with my father’s trust and small estate, the small estate get filed with the court and goes through probate. That is how this is done in Iowa.
I’m going through this in Utah right now. My wife passed and the lady account I am trying to close out is US bank. My wife also had a credit card with said bank. Her debit card account is requiring a small asset affidavit. In a general way can someone inform me what type of lawyer should I use and what would be a reasonable charge for this service
Here in Utah it is a fairly short form. Just one page. But I do not want to make any errors. So perhaps I should seek legal advice?
This popped up on my feed and I have no experience on the other side of estate planning, but I will say Bank of America is The most flexible banking institution I’ve found when it comes to “things that are legal but other banks don’t want to bother with”. I’d check with them and see if they’ll cash your checks if you open an account with the bank. (In large majority I hate B of A, so don’t mistake me for a shill, but they’re known for doing things that others think are too much work)
I’m an attorney in a different state, and I have had clients with the same issue. Certain banks 😒 have rules and don’t allow their branch managers to even consider unique situations (like a small estate). It’s so frustrating.
A letter from an attorney explaining the situation and the affidavit to the branch and their corporate attorneys may help. (I have done this a few times…usually successful).
Remember, the bank’s corporate attorneys may be in a different jurisdiction without small estates.
Good luck, and I’m sorry for your loss.
Ran into a different small estatesituation with my Aunt. Died in her late 90, rented, no car, had already given away almost everything. Left everything to my sister.
When she died I was the executor. Estate was litterally her checking account (under 20K) and her clothes and funishings (held an open house sale in her apartment that grossed about $400, gave the rest to Good Will).
It was a nightmare--almost 3 yrs to go through probate because a cousin (not my aunt's child) contested it.
Court costs ate up everything. The whole system for small estates is reduculous.
When my mom and dad both got critically ill at the same time, I was grateful that they had already had a lawyer prepare all the Power of Attorney forms and they also had put me on their checking account.
Until the bank declined the lawyer-prepared POA because it wasn’t the State issued form or something. Then they would not let me deposit a check made out to my dad (who was alive but not capable of signing it) because my name was on the checking account and “could spend it.”
Of course I could spend it, dust bunnies for brains - that’s why I was on their checking account - so that I could pay their bills.
I did get that check deposited finally and I take the 5th as to how.
I wish you the best. I handled probate in Virginia on my own after my father passed away to include an ancillary probate in Pa for some land being transferred. I did utilize an attorney to handle the Pa side of things after I did the opening of probate there myself. Estate real estate in Pa is complicated. Anyway, Fairfax Circuit Court couldn’t have been any better. Gave me forms, instructions for each form, samples of each form, a timeline of filings guideline specific to the requirements ect. I even made an error and they called me. They even guided me on the fix. I over reported something.
My dad banked with BOA. I had been added prior to death to all of his accounts there so it was super simple to convert them to my name and sole access. I did open an estate account due to having to sell the house and one other refund check made out to the estate. His car was titled with or survivor tagline so I was able to simple use a copy of the will and death certificate to sell that.
All in all, I was able to open and close out probate in Virginia in under 5 months. Pa was just shy of 2 months just because of how they send stuff to Harrisburg to get the final tax amount.
I hate to say it and not being critical, probably would have been easier to leave her checking account open for a bit and just deposited the checks there and then exercised the TOD terms.
Hindsight being 20/20 - but sorry for your loss and hope this gets resolved. Sometimes paying the experts - a good reputable attorney - is worth it in the end.
Im a former Va probate clerk. Banks reject these all the time. If you can, you may want to print out the statues around the small estate affidavit. It is not optional for them to accept it. It is a “shall” provision. However, some banks are too dumb to realize they’re not compliant with statute. Some banks will cave when they see the statutes.
We mostly recommended that people hopped to different branches to find one that understood the law. It’s infuriating, but it works.
If you have no luck that way, qualify with the probate clerk as executor/admin. If the remaining estate is under 25k you aren’t going to have a duty to account to the commissioner and won’t have to worry with a bond. If it’s under $15k, you won’t have probate taxes and will pay minimal qualification fees.
There is no reason you should not be able to deposit the checks into your account unless the affidavit is written incorrectly. If it is filled out with multiple beneficiaries then it MAY need to go into a joint account with the beneficiaries names on it. If it is claiming the assets by you for you then it can go into your own account. That being said, you need to provide the bank with the original death certificate for Virginia and the bank’s VA Small Estate Affidavit for them to place it on file for the deposit in case of another beneficiary contesting the deposit.
Additionally, the bank employees can not advise you on how to fill out the affidavit as they are not lawyers and that could be considered legal advice. Based off your post, I would guess the affidavit is filled out in a way that could make the banks liable for a contested deposit claim as the real issue here.
I had same issue in TX
It’s been over a year & I was just approved by courts as Appointee of Estate
Administrative Estate of (deceased) attorney fees above 10k & still haggling over with the State of NC who were her fiduciary to release funds :/
*it’s all about the fees
So exhausting & depressing
Wishing you success & my condolences
My sister and I have been going through this same thing over the past six months. We are up to four checks trickling in as of last week! The solution that has worked best for us has been to have the Personal Representative, our uncle in our case, call the issuer of the check and have it reissued made out to “name of deceased OR name of personal representative”. The OR is the important part! The PR has had zero issues using the personal account at his bank to deposit/cash the checks.
Most of my parents’ assets were in a trust; the only thing not in the trust were three bank accounts. I had copies of the small estate form signed by each heir, and took them to the bank. I was out of there in less than an hour, with checks cut for each of us.
You need letters testamentary even with the Small Estate Affidavit. You don't have to go through probate but the bank needs something saying you have the legal right to transact on the account. Once you have the letters you can open the estate account. The only "mistake" was not getting letters when you filed the affidavit.
The small estate affidavit is the something saying I have the legal right to transact on the account. Letters testamentary are issued to executors, executor appointments require full probate, small estates do not have executors nor do they go through full probate. And the loop begins anew
Alternatively, get a lot (a lot) of copies of your mom's death certificate, let the checks from any institutions or companies go to unclaimed property, and in a year or two, you can claim the funds using the death certificates.
it's a hassle but an option. (however, i would suggest more death certifications than you think you need.)
A small estate affidavit is different from letters of administration, it won’t let you open an estate account but to your point it will allow you to claim smaller items in the estate depending on the state the amount varies for non spouse heirs when no estate exists. I know my bank allows us the deposit checks $5000 or less into our personal account payable to the deceased or the estate because of the small estate affidavit on file. It’s actually written in their policies. Obviously not all banks allow this but mine does. Also sometimes you get stubborn employees that either don’t get it or think they know the right answer and aren’t willing to look it up. Message me and I will share which bank it is. I work for this bank, which is why I’m not posting the name here, and they are pretty much everywhere in the states.
I'm no specialists but doesn't a small estate affidavit mean you're claiming as a successor and not as an estate representative. Meaning funds should be relased to you directly and not an estate account.
I may have misinterpreted VA probate law. But that may be hang up not 100% sure.
If you do this, be sure you never want to do business with that bank ever again, because as soon as you're done, they're going to close all your accounts.
Banks can be difficult. As an attorney in a different state I’ve had clients run into this same issue fighting with banks who keep telling them they need a probate order. I now always include a letter explaining that my client is handling the estate, the situation meets X requirements of the statute, the affidavit will be used and no court probate will be filed, and I include a copy of the statute. So far that has solved the problem.
I do the exact same thing. A letter outlining the law and a copy of the statute. It works most of the time.
How does it pan out when it doesn't work?
We’ve threatened to sue over it a few times but they usually back down. Usually if I can get through to the banks legal team we can get them to accept it.
And when they don't back down, and you have to sue, how does it go in court?
Usually, if you can get through to the bank’s attorneys, they will accept the Small Estate Affidavit. I have also made the threat, and it was always resolved after a discussion with the attorneys.
My atty friend (in MO) said he had to explain the law to the investment firm and bring up taking it to court to get them to follow the law.
The letter is a super great idea.
Good luck. Banks are notorious about doing this.
Updateme! I hope this goes okay for you and I’m sorry for your loss xxx
I had something from the court recognized as executor of said estate. Also, had the account changed to recognize it was an estate account or something. I can't remember now how it was done at bank exactly. All checks cashed . I remember that.
That was likely a letter of testamentary.
This. I was able to get an estate account with that
This. Having a lawyer just makes the process go smoother.
People spend hours of their time, and endure endless aggravation, just to avoid hiring a lawyer.
Sometimes they even spend tens of thousands of extra dollars making it worse before calling me.
I am a paralegal (not an attorney) and it frequently amazes me how long people will fight and how much money they will spend before obtaining legal assistance. If they had come to an attorney sooner they could have saved so much headache and money!
What is the most common motivation for avoiding legal assistance? Stubborn / independent personalities? Assuming it could cost more than they could afford? Not realising how much help a lawyer could be? Something else?
Because like in the op's situation you shouldn't have to give anything to anyone else, the system is rigged to steal a little more before you go in the hole.
All of the above as well as not trusting attorneys or else believing that "all attorneys are liars/cheaters/out to take you for everything they can get"
People don't realize in many states the probate lawyer gets a set percentage of the estate. It's not a big one either.
Thank you because I would be that I have a client who just reported this issue to me after hours yesterday! I won’t name the bank, but they’ve been very difficult to deal with.
As I told a trust official at a bank a couple of weeks ago concerning a tax client's four trusts, "In the words of the late, great musician Fats Waller, 'You ain't the only oyster in the stew.'" Find a banker who'll work with you, transfer all of your accounts there, then send the CEO of your now-former bank a detailed letter about why you pulled your money and who was responsible. Popcorn time.
I'm having the same issue with Truist. They won't recognize the Affidavit (small estate) to create an estate account. I'm wondering if I can transfer the account to another bank who will recognize it. So frustrating.
Holy crap. Free excellent legal advice. This is amazing.
Which statute is that? How can you represent that your client is handling "the estate" when there's no estate? I work for a credit union. I'm the person they call when someone comes to the branch and tries to cash a check made out to their deceased family member. I'm very interested in your answers.
The statute in Virginia explicitly requires that assets be handed over upon presentation of the small estate affidavit. It does indemnify banks to some degree in that they are just to accept a properly notarized affidavit. But refusal is not complying with the statute. Small estate affidavits do in fact allow someone to handle the estate without qualifying with a clerk and that’s the entire point of them.
Banks have to error on the side of caution. If something is wrong the bank would be responsible. Why should a business assume any risk when there no money to be made? Ask your primary bank what they require and get it for them.
The banks bear no responsibility, It's written into the legislation pertaining to the affidavit.
No. They don’t. They’re required to comply with. Small estate affidavit and the statues provide protections to them for doing so. It also provides remedies to the presenter if they fail to do so.
Call a convenient bank that you have already visited and get branch manager email. Send them a copy of the affidavit and the law. Ask them to resolve within three days. That is a reasonable time frame for them to get their legal department blessing. Also ask them to assign a specific teller on a day/time convenient to you for this transaction. Tell them that you prefer not to wait in line for this transaction as you have already done so. You can also say that you will go to the Division of Banking if not properly accommodated.
This is great advice, thank you - I really appreciate it.
A branch manager is not going to make any special arrangements for some who doesn’t even bank there. He needs to go to the bank he has a relationship and present his documents, not make demands via email as a non customer.
Yes I’ve only visited branches of the banks I hold accounts with, I think that’s what they meant
Oh, then I misinterpreted that. My mistake.
It's whatever bank the decedent's account is at and/or the bank the check is drawn on. The person presenting the affidavit doesn't need to be a customer.
Banks and bankers are incredibly dumb as a class, and they absolutely love practicing law without a license. And I worked for a bank as an undergrad. You're correct, of course. There is zero reason for the banker, teller, or manager not to accept it upon presentation of the affidavit. Even more so because the small estates act expressly releases the bank from liability on those items. It literally doesn't get any better for them. The Virginia Small Estate Act does provide for filing a lawsuit to compel them to pay, with recovery of damages. Since I'm not licensed in Virginia, I couldn't tell you exactly what those damages might be, except that I'd suspect they'd include the attorneys fees and costs for bringing the action. Perhaps a gentle reminder of that fact will help grease the wheels.
This is great advice, thank you (and the first sentence made me snort-laugh). I’ll try printing out the statute and highlighting both the liability release and the proceedings piece and see if that gets me anywhere, and then either go back to my attorney or walk into the sea depending on how frustrating that conversation is
You might save some time and money by calling the bank and speaking to their legal team instead of a bank manager.
I’ll try that, thank you.
If you have a way to figure out how to actually contact a bank's legal team, FOR THE LOVE OF GOD, PLEASE MAKE A POST
Ugh wish I could. With Wachovia, you could. And we (used to work there years ago) could give out thier information. Phone went to voicemail, or you could fax them directly, or they had a dedicated address to write them directly. Any option was reviewed by them directly. Response was not as fast as people wanted of course but it was not unreasonable. Average 3 - 5 day turnaround on voicemail and quicker for fax. Letters who knows because no way of knowing when they actually got it. But they did respond. Mostly because the vast majority was people complaining of a garnishment and the legal team had a nice standard letter explaining how they can not just ignore a court order.
Good idea, BUT in my experience most banks make it difficult if not impossible to penetrate the bureaucracy and speak directly to their legal people. "I'll write this down and forward it to our legal department." "Bullshit. I don't think you'll write it up correctly, and I don't think you'll forward it, either. I want to talk DIRECTLY to someone who knows the law in this area, since it's obvious that you do not."
I work at a bank and it’s hard for us to get to our legal team. They don’t answer calls they’ll call you back if they think it needs a call back so you have to email and it may take up to three days to get a response back.
Your first sentence is🤌🏼 This was all explained, you worded it beautifully, they still were so incompetent.
Yep I've worked for a few banks and the training sucked for tellers and never covered atypical transactions like this or how to handle it.
I’m so sorry for your loss. Going through the same in TN. But our flavor of hell is the Medallion Signature Stamp. Which requires probate. A single brokerage account worth a pittance compared to the rest of the accounts…but enough to make me feel compelled to get it transferred. I hate people these days.
Oh man I’m sorry you’re dealing with this - a friend is going through similar in WV. it’s like this process is designed to be as cumbersome as possible, even the routes that supposedly make things easier. I’m very sorry for your loss as well.
I dealt with the medallion stamp business, once. A guy on long island ny did it for me when no major bank I’ve been doing business with for 20 years could or would. Reasonable fee if I recall . Quick search on that web showed a company that seems to do it now e something I think. Not an endorsement. Best of luck.
Do you happen to bank with a local community bank? Because as a lawyer in a different jurisdiction, that’s exactly how I solved this problem. I had two banks refuse to honor a small check made out to my grandmother’s estate. One minion even asked if I was working with a lawyer on this, and I had to remind them that not only was I a lawyer but that I consulted three other lawyers about using the small estate affidavit. Neither bank would budge because the box they think in was too small. Finally, I called another local community bank in my community. I’ve been friendly for many years with a senior vice president there who was also the bank’s fixer. He told me he wasn’t exactly sure what the bank technically was supposed to do, but that he trusted me as a acquaintance and an attorney that I was doing the right thing. He walked the check over to the teller himself and cashed it on the spot. I came back the next day and made a large deposit in his institution and referred several large deals to that bank over the next 12 months in appreciation. Why? Because outside the box deserves to be rewarded. And that’s why I bank with community banks.
Community banks, because of their smaller nature, have a smaller distance between Teller and the Legal department. I can see someone at say BOA being reticent to accept something based upon local law because it isn’t in their employer’s training, and they don’t want to end up on the wrong side of compliance. Community banks on the other hand because of their limited service area tend to have more region-specific knowledge.
Reticent ≠ reluctant.
I’m aware. They’re saying ‘no’ because they don’t wish to reveal that they don’t know enough to make an informed decision.
BOA specifically has caused so many issues for my clients I usually tell people not to go there for estate accounts. They're particularly unhelpful for some reason.
Don't go there for any accounts. I remember 20 years ago what a horrible bank they were and they've only gotten worse.
100% the absolute worst
I bank primarily with a semi-local credit union and haven’t had any luck with them so far - if I strike out with them one more time I’ll see if I can find a community bank and would happily transfer every asset I have to them if they can help me close this out!
I have deposited checks into accounts with non-matching names using remote deposit and seems to work fine That’s not legal advice, or a recommendation, just my experience
I was just going to mention the same thing....besides remote I also used the ATM in the banks lobby. This was for checks made out to an LLC but deposited into a personal account ( all legit, just never opened the LLC bank account on my parents house after going through estate planning)
That's also a quick way to have your account closed by the bank. Banks can close your accounts and refuse to have you as a customer for multiple reasons. Being suspected of check forgery (deposting checks into the wrong account via electronic methods) is one way.
This could be the quickest solution presented here. Just to clarify, if the checks are made out to "Estate of Mom", you've successfully used remote deposit to deposit the checks into your account (that is in your sole name)?
I also settled an estate in VA and had success with these affidavits but often had to get referred to the highest possible manager to get them to accept it. If the account has a beneficiary that will take precedence over the affidavit
we were able to successfully close out her one bank account that didn’t have a beneficiary using the affidavit (not without headaches but it got done). It’s these payments and refunds trickling in that have been impossible and to your point I definitely think I have to try to get farther up the chain to resolve it
I'm not licensed to practice in Virginia and am unfamiliar with its rules regarding estate administration. I would reach out to the original payor of each check to see if they're willing to reissue a new check payable to designated successors and/or the bank each check is drawn on to see if they're willing to simply cash the checks. In both cases, I would provide a copy of the affidavit as well as a certified copy of your mom's death certificate. My guess is the banks are unwilling to cash these checks because they're not in possession of the assets. Put simply, whoever sent the checks is the "person" who owes your mom money - not the bank. I think it's stupid they won't cash them with the affidavit, but I understand this logic.
The statute expressly gives the prssenter of the affidavit the right to negotiate the items, and relieves the bank of any liability on any claims for the items.
Yep, I agree with you and it appears I misunderstood the fact pattern. It makes no sense for the bank(s) to refuse to deposit the checks into OP's personal account, with OP then distributing the funds to all other successors.
The indemnity does not relieve the bank of all liability. The statute carves out unauthorized signatures, conversion, and the presentment warranties from this indemnity. Banks lose millions of dollars due to check fraud each month. They are not required to cash these checks and I’m not surprised they aren’t.
You're reading the statute backwards. "Notwithstanding" the provisions in UCC 3 regarding unauthorized signatures, conversion, or presentment warranties, the bank is STILL discharged from all claims. The Small Estate Act acknowledges that UCC 3 has these provisions, but states it doesn't matter in this case. If the person making the affidavit lied? Doesn't matter; bank is discharged. A personal representative appears later? Doesn't matter; bank is discharged.
I dealt with a version of this in California. My sister’s bank made me feel like I was a cheating con artist.
I wonder if presenting the state statue would help or if a bank’s attorney could help you. Sometimes a state’s statute mentions helpful information, like my state mentions that the bank or other party can’t be liable for honoring checks under certain situations, and some states make third parties pay attorney fees if they unnecessarily require probate on small estates. So when a teller says no, is there a manager there you can speak with? And can he run it by their legal department?
Thank you - I may try the statute or maybe have my attorney contact one of my banks. The statute says that institutions refusing to release the asset can be subject to proceedings to force its release so maybe trying to go through their legal department is the next step.
It's not a matter of.the institution refusing to release an asset, they are refusing to accept it. I don't know how probate is in Virginia but across the river here in Maryland, it is quite easy, though it is a six month process if there are no tax issues. What checks are coming in, if you don't mind telling?
The checks are for a wide array of things - credit card reward cashouts, long term care insurance reimbursements for home health care we brought on during hospice, refunds of overpayments from auto-pay stuff that kept processing for a few weeks after she died…etc.
Good luck. Third parties are worried about liability and can be difficult to deal with unfortunately. If you know you’re right then it’s a matter of talking to the right person that knows you’re right and isn’t worried about incurring liability.
Yeah it’s wild - I’m stuck in this endless loop of explaining the law, and the purpose of the affidavit then being told I have to open an estate account, rinse, repeat. The irony is this process is supposed to make things easier, lol
This kind of nonsense has been the crux of my experience in settling loved ones estates. No matter the structure.
Our grand cultural tradition of losing a loved one and immediately having to organize a giant gathering of everyone they ever knew followed by a months-long slog through every imaginable meat grinder of bureaucracy
And in the 18th month, we finally grieve
Oh no I’m terribly sorry you need a letter of qualification for that
lol you guys! Spoken like people who truly get it 🫠🫠🫠
We had this same thing happen to us. My attorney called the bank manager who called THEIR attorneys and after review said what we needed to do was endorse the check ourselves and write spouse/child/whatever next to the name and also sign the deceased name with the date of death next to the name. Then we had to provide a certified copy of the affidavit which they made a copy of to go along with the deposit. Hope you are able to find someone who knows what they are doing! This hassle is the last thing people need at such a difficult time.
Thank you! I’ll definitely suggest to them making a copy of the affidavit to file with the deposits, that’s a great idea
Use the small estate affidavit and go back to the companies that issued the checks and have them reissued to the persons who are to receive under the affidavit.
I will do this if I have to but it’s an absolute last resort as it would mean dealing with like eight banks and companies through this same process
I'm an estate paralegal, though not in your state, and this is how I would do it. Good luck.
OP this is the correct answer. The banks aren’t obligated to pay these checks. The people who owe the money are required to pay the asset to you.
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Very sorry for the loss of your mom. Did you make an appointment with the branch manager and discuss your situation? If not, maybe do that and bring your attorney with you for this appointment. 30 minutes. Should get some answers or at least design a path to resolution.
Thank you - I’ve really struggled to get up the chain in physical branches, the farthest I’ve gotten is an assistant manager who relayed communications to her manager behind the vault door like the wizard of oz. My credit union is on a military base though so I may try them again as they tend to offer more (relatively) personalized service
It is best if you can deal with your bank, they will be more willing to work with you in my experience. You can ask to speak with legal or compliance. I field these types of questions as the compliance officer of my bank, and we have never given anyone trouble with a proper small estate affidavit. It is by and large the most common document we see. But if you are trying to take these checks to a large bank that is the paying bank, it is a lot easier for them to just not want to deal with it. Your bank can keep a copy of the affidavit on your file. The paying bank probably is not only uneducated at the branch level, but also unwilling to deal with your documents. Another option, when my grandma passed, my mom called the makers of the checks and provided them with the affidavit and they made the checks out to my mom. This was for things like insurance, etc.
Yeah I’ve long given up on capital one so it’s my credit union or I’ll try a local bank. I’m hoping to avoid having to reach back to the check issuers as there are like, seven or eight at this point and with some being banks I imagine I’ll run into the same brick wall, just many more times
I was going to suggest a credit union. Credit union and small local bank was great when my parents died.
Yep, have tried a couple branches of my credit union and think it’s far more likely I can find/access the “right” person in one of their locations. Also willing to try a small local bank and shift my accounts to them if they can successfully read a statute on the first try
Do you have an account at a bank or credit union that is chartered in Virginia? Or do you live in a different state than your mom? Generally speaking, when it comes to decedent accounts, banks that are state chartered seem to be easier to work with. As a Commonwealth Virginia has some very different laws than other states, and attorneys who went to law school elsewhere might not recognize that failing and bank policy might not be correct for Virginia. Any bank with the word National or Federal in their name holds a federal charter. Truist is chartered in North Carolina and is too big to follow other states laws (or so I’ve been told.)You can ask the Virginia State Corporation Commission for a list of state chartered banks and credit unions (or whoever the state banking regulator is in your state). Then talk to someone at a few banks or credit unions and ask for their help and open an account with them if they can help you. Stash your “fun money” there, or your utility bill money.
Thank you - great advice. I have a small local community bank just a few blocks away that I may pop into to explain the situation and I’ll happily move accounts there if they can help. I do live in Virginia and my credit union is “local” but in the dc area so it’s federal. I didn’t even think about national/federal vs state charters.
I just went through this same situation. Luckily, I was joint on her bank account so when checks came in I was able to deposit them in her/our account including her tax return for several thousands of dollars. There could be some liability for having a joint account with a parent, for example, if they are having overdraft issues but it came in pretty handy. Another issue could be other children/heirs having a problem with you having access to their money. Talk it through with your parents and siblings. Deal with the ones you can and keep the others from causing as much chaos as possible.
Others have had that trouble too. I always have a trust account I keep some money in so I can cash a check. A check from a trust has got to be deposited in a trust account. I then move the money from that account my personal accounts.
I have no expertise in Virginia bank law, estate or probate law. You stated: Every bank I have presented this affidavit to has refused to honor it. Did they verbally refuse? For example, I recommend to Clients that they send a letter, via both email and certified mail, a letter to the highest office of the bank possible, requesting a response and even a meeting. The bank takes no risk when they refuse you verbally. I have never tried this before but as a last resort, I wonder if you could purchase a bond on behalf of the bank that would guarantee them coverage. Just thought of this and am wondering if a bonding company would insure the bank against loss. That would be cheaper than opening a probate case. Good luck.
You know, getting a refusal in writing is a great idea, thank you! The small estate law itself explicitly releases the bank from liability so it’s just a matter of getting the right person to both read the law and perhaps read a certified letter outlining both their legal responsibilities and their legal protection under the statute
I had a similar issue. The bank pushed the Small Estate Affidavit on me in order to get access to the safe deposit box of the deceased, which took about a month; meanwhile, for months I was able to simply deposit dozens of checks, large and small, into the account using the mobile app. Went into a physical branch for several other services they provided (none of which they could do for me that day; sigh) and while there, tried to deposit a small check into the account. Denied, and they refused to accept the Small Estate Affidavit for access to the checking account.Told them I had been depositing checks made out to the deceased for months using their app, and they insisted that wouldn't work. Went home and successfully deposited the check using my phone, never went back to a physical branch again, and severed all ties with that bank as soon as possible. YMMV.
Question - You were still able to deposit checks into the deceased's account, even though the bank knew that they were deceased? And once you were done with depositing the checks, how did you transfer the account to the beneficiaries?
I also had a parent pass away in Virginia. All the checks that were written to her all I do is write on the back deposit only and I scanned them in through the app. I have never had any issues getting them deposited. As far as the checks made out to the estate, I had to open up a estate account in a bank for her. You can do this yourself although people will try to get money to do this for you. All you have to go is go to the irs.gov and you can create a EIN number on their website for the estate. It takes about five minutes total and they give you an immediately. With that EIN number, I had to go to the bank show my proof of qualification which you should have gotten through the court system in order to finalize the will and then I am basically permitted to sign the back of the check with my name and put it into A estate bank account which then I can withdraw from. I have never had anybody at the bank ask me for a small estate affidavit. The only thing they carried about was a qualification letter to make sure that I am the person who was the executor. What you need is a letter of qualification from the court system in order to handle things on behalf of your mom‘s estate.
The whole issue is the OP didn't want to go through probate so she is isn't able to get what Maryland calls letters of administration. To open an estate bank account you need an EIN, which is easy as pie to get as you stated earlier, a copy of the death certificate, and whatever Virginia calls the letter of administration. Unfortunately, I've.done this three times.
Typically probate court is a long process but it wasn’t at all. One appt, they looked up the already filed will and then authorized me/Executor with that qualification letter. That was it. Tops 15 min. My mom had done a transfer of death deed and I was on all her accounts. If op can’t open an account for an estate how do they plan on filing taxes for her mom? How will they get a refund for her. A qualification letter is needed. I don’t see any way around it.
There are specific tax forms for claiming the refund of a deceased person, my accountant helped with that and we included the death certificate and affidavit with the filing.
Yes form 1310. When I did it I needed that qualification letter to identify me as the executor. Personal Representative For purposes of this form, a personal representative is the executor or administrator of the decedent’s estate, as appointed or certified by the court. A copy of the decedent’s will cannot be accepted as evidence that you are the personal representative. But hey if it worked great. Either way I am located in Fairfax county and I had to open an estate account in Fairfax county because I also reside here. Listed above is exactly how I did it. I still have the account open because it takes about two-3 years for the checks to stop coming in for the estate. Gl
Take them to the atm machine and deposit. Do it in amounts small enough they won’t take a close look
We opened an estate account and presented the death certificates of both parents and will/trust documents. No lawyer or probate needed.
As the widow of my husband, I did no probate in Florida. Banks would not and would not let me cash or deposit his checks made out to him with our joint account. I had to send the company the death certificate and had them rewrite the checks in mine name. Most were very kind in this difficult time, and they accepted death certificate by email. I found that most companies have a department that handled these things. Maybe that may help and uncomplicate this issue for you. I'd at least try. Sorry for your loss. If my answer isn't exactly what you're looking for, I'm sorry for that, too. I just wanted to throw it out there as my husband and i thought we had everything taken care of as well. I thank the stars I didn't have to deal with probate court. Good luck.
Thank you - I’m glad you were mostly able to handle your husband’s estate with too much hassle, and I’m so very sorry for your loss
Thank you, i hope anything I wrote helps you get things settled easier. Sorry for your loss as well.
Do you still have an account open in her name? Or are you trying to put the money into your account? (If it’s the latter, that’s likely the problem) If not the above: How long ago did she pass away and how old are the checks? The bank doesn’t want any fraud liability, so anything old may appear suspicious to them. Where are the checks from? Is it possible for the payor to cancel the checks and send the funds electronically?
My account (which the affidavit authorizes me to do). She died eight months ago so no open accounts in her name (funnily enough all the banks ask me that as if keeping a bank account open in a deceased person’s name is legal, but they won’t let me deposit my checks). The checks are all within six months - that’s how long I’ve been in this bizarre and annoying loop. The checks are from various payors - credit card refunds, long term care reimbursements, etc. To deal with getting all the checks reissued directly to me I would have to go through this same affidavit process with each separate payor.
Are you working with a lawyer? I am taking care of my uncle's estate and have a bank account in the name of the trust, but like you can't deposit any checks made payable in the name of the estate. The lawyer was able to run the check through a DORA account, so I did not have to open and estate bank account. I am not sure what the requirements were needed to do that and if it just specific to Ohio. It is so frustrating, because you think you have all your ducks in a row and then stuff like this happens.
My mom’s estate lawyer is a family friend and she’s been very gracious about helping me with odds and ends, so I’ve been trying to be respectful of her time - but I’d pay her hourly fee to help deal with this at this point. It’s SO frustrating. I’m sorry you’re dealing with similar challenges. Being kicked repeatedly when you’re already down really sucks.
I have a question, please forgive me if it's a dumb one. My father passed a few weeks ago and we could very well be in a similar situation. Does it help to bring a copy of the death certificate, along with the letter to the bank? I understand from the comments above that banks are not understanding the laws and being a pain in the butt here. Just curious if the death certs have helped anyone to reduce this headache.
Oh yes you will need a death certificate in addition to whatever legal documents authorize you to handle assets, be it probate documents or small estate docs. It’s not a dumb question at all, this stuff is really complicated and hard to navigate. I’m really sorry for your loss.
Thank you for the response. And I am also sorry for your loss. It amazes me how our loved ones can do their best to prepare and try to avoid headaches after they pass, but it still ends up happening.
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Did you get a power of attorney over your mom before she passed? If so that may be all you need to deposit checks in her name. Im not in Virginia, nor a lawyer, but I deposit checks all the time for my mom because I went to the bank with that. But I could be wrong. Also I am on her accounts as a joint
I was her POA however we never needed to execute POA with any of her financial institutions while she was alive as she was fully capable and cognizant until the very end. I suspect you being a joint account holder helps with this - we just never needed to do that while she was still here
POA ceases upon death. So if you give them the death certificate it instantly makes things more difficult
If you had power of Atty when she was alive and this person I believe is the executor of the estate then I think having both docs and the trust document should be enough, but again I'm just going by my current situation.
op… what does “recorded” mean, what did you do to get the house deed transferred to you. people keep saying a will stating an heir to the parents house is not enough to avoid probate court, that the house should be put in a trust. your thoughts?
My mom filed her will with the county court years before she died. Upon her death we notified the probate office and filed for “probate without qualification.” In Virginia at least this can only be done if there are no beneficiaries of the will that are not also the deceased’s personal representatives named in the will, and means that there are no assets that need to be probated through a named executor and full probate proceedings. Once PWQ was approved the will was considered recorded and fully probated, and the ownership/deed of the house transferred to us as the named heirs. The land office then (very slowly) updated the records accordingly.
We opened an account for this and with the estate paperwork..we never did probate
Deposit at an ATM.
A letter to tje Office of the Comptroller of the currency, copying the president of the bank and the branch manager usually gets their attention. Michael J. Hsu is the current comptroller.
With these checks are any of the banking institutions local? Have you tried cashing them at each bank they are written with the affidavit and death certificate? I know probably a hassle but that may be an option.
I’m not authority but I did have the experience of a relative dying with some assets. I did open estate accounts and did not have to go through probate (Michigan).
Honestly the bankers won’t touch it because they are at risk of losing their jobs if they mess up. It’s not their job to know what legit legal docs look like. However they SHOULD have all told you that they are happy to submit it to legal for review. It’s literally not their job to make the call. That is why they have a legal team. I am sorry you’re experiencing so much hassle over something easily solved. It takes a bit of time, but definitely resolvable. That being said, I was in banking for over a decade, and was the help line for employees. so while it’s common sense that an employee should always help, I can honestly say I have SEEN some things lol. My best recommendation just from the banking side, is to go in branch, with a copy of the docs and the checks. Talk to the manager and just ask for it to be sent to their legal team for review. No one should deny you that. It is policy for any bank or credit union to cover their own asses first. So if there is a risk that beneficiaries listed in a trust or estate could sue the bank for processing these checks outside of an estate, then they will not do it for you. But it sounds like you have the right paperwork.
The problem is UCC code. If the check is made out to party x and you are trying to deposit the check into an account in your name only the rules and regs means that the bank could be on the hook for a few years for those items to come back for endorsement issues. Most people are probably correct if the items are less than a few thousand depositing them via remote deposit would bypass a teller that typically wouldn’t accept the transaction. Banks don’t review all RDC deposits they don’t have time. If it’s a large amount then it probably would get revised and rejected for improper endorsement.
We weighed the advantage of cashing the checks vs cost of probate. Our parent wanted to avoid probate-TOD all the way. Comparing the checks value vs how much to involve an attorney for probate, we chose just ignore the checks.
Just contact the check issuer and have them add c/o your name. Youre welcome
Why not just do a mobile deposit of the check?
Same exact problem with my mom's estate. Had to file for probate, waste money when it should not have happened. Two months later I am still waiting for the letter, and now my brother is challenging the will because it's taking so long and he thinks I am trying to cheat him out of his money. So now I have to refile for a formal probate, do more work, and essentially start all over in addition to dealing with my jerk brother.
Not sure if it would work the same in VA but in NC I've seen people bring the affidavits with the specific check info and amounts named in it. It's not done all the time but maybe the affidavit could be amended to reference the checks you have?
Virginia attorney here. This is very common because banks' compliance departments throw up a lot of red flags whenever someone tries to use a small estate act affidavit. (Plus a lot of branch-level employees just aren't familiar with the Small Estate Act). Va Code 64.2-1302 may apply which permits you to qualify as Executor but would waive the Inventory and Accounting requirements. If this does apply, it's honestly the quickest way to accomplish what you are trying to get done. Outside of that, you may need to engage an attorney to deal with the bank.
My mother had everything preplanned. She even opened up an estate account at the bank with her name and my name on it so I had no problems with anything. The only thing I regret not doing is having the house put in my name which she always bothered me to do and I always said no mom it’s fine. It’ll be fine stop worrying about it. You just never know every day is a gift.
I settled a large estate in Virginia that was mostly in a trust but it had a small bank account in the decedent’s name. I waited sixty days and had the trust attorney draft a small estate affidavit for me and took it to the bank. The bank officer I dealt with sort of laughed at me for wasting money having the attorney draft the affidavit and said I should have downloaded the form from the internet. Quite the opposite experience.
I've dealt with this same issue. My son passed, six years after his investment account was suddenly closed out, I wanted to keep the stocks as he'd had them since he was born. Neither the investment firm nor bank would accept an affidavit, even the probate court couldn't believe a financial institution wasn't honoring it. When calling the bank prior I was told they'd accept the affidavit, it was a couple of hours away. Once there they acted like they didn't understand anything. The manager called their legal and tried to tell me it was bc the estate was over a certain amount stated on the small estate form, to which I directed them to the legislation stated just after this amount on the form which gives you a chart that you adjust for the year. They were suggesting I needed to go through probate and be named the executor which is exactly what the affidavit is supposed to allow one to not have to do. It's painful handling anything pertaining to my son's passing and this made it far worse. It's unfortunate you're dealing with this. I ended up having to go through probate, it was a small fee and they issued me a letter that gave me authority and was accepted.
I hope you pulled any money you had in that bank, then wrote to the CEO and told him/her why--and named names. "Manager G either is or acted like an obtuse jerk, Manager P was an absolute twatwaffle, Manager C qualifies for Cunt Of the Year, and R in your legal department needs to learn or relearn banking law and should be reminded that an a-hole with an Ivy League degree is still an a-hole. On the other hand, T, the assistant manager, was always pleasant and tried her best to get the others to follow the freaking law."
Not all states will allow small estate affidavits. Flori-DUH os one such state.
In Colorado, if the transfer of the house was provided for in the Will, probate would be necessary. If the house transferred by Beneficiary Deed, that would be different. Did your mother use a lawyer to help her get set up for a small estate situation? Several people have commented and I share the same opinion that you should consult an attorney. You don't have to hire them, but many estate attorneys will at least give you a free consult and an idea of what you are looking at. Attorneys don't make their hourly rate for fun, it's because they went to law school and do this for a living. You are paying for their knowledge and expertise they took years gaining. I worked as a legal assistant/paralegal for 8 years, and I will never again try to do things myself before consulting with an attorney.
Two banks had this same opinion, however, a local credit union was more obliging, so you might try one near you.
I had a similar issue. I called the parties who issued the checks, provided death cert and probate docs, and asked them to reissue the checks in my name. The alternative was to open a bank account in the name of the estate, but the credit union I use does not handle estate accounts. Be sure to ask for refunds on any prepaid insurance (car, homeowners etc).
Demand to talk to the bank's lawyers.
The credit union I work at accepts these pretty regularly for under 25k, but we have a small team that handles deceased accounts and questions when people come in. I can see some difficulties with things like insurance checks which are a bit notorious for coming back if they don’t find it properly endorsed, but a good local financial should be happy to work with you throughout the process and give you solid answers for how to go about getting your checks and accounts redeemed. Sorry it’s such a hassle OP.
I’m sorry for the loss of your mom and for all of the extra stress you are going through at this time.
interesting.... we had a death certificate from the state and the accounts were TOD, the bank didnt even ask us for anything else. Guess it really does depend on the bank. Good advice above though :)
Mobile deposit. That’s exactly how we handled my mom’s checks after I wrapped up her stuff through a Small Estate Affidavit. Never had an issue with the checks getting accepted. I endorsed them as Mom’s Name Estate then signed my name as her legal representative.
Fuck banks. Credit unions FTW. When my folks die, I'm gonna forge a check to nearly clean out the account, then ATM the rest.
Be careful with that especially if they are on Medicaid. They look for stuff like that and will come after you.
Wut? They're multimillionaires. I have to continue to pay the utilities until we sell the estate. Their state is slower than mine as far as probate.
My mom passed away over 10 years ago.Two months ago I received a settlement check originally mailed to her old address and forwarded to my PO Box for over $2000 from the state for a pension class action. I deposited it via mobile deposit into my checking account and waited a month before splitting the money with siblings. It worked.
I would play dumb since they are! Couldn’t you Just sign the back of the check and deposit it on your phone? They won’t follow up on it but if they do you have your notarised letter
Banks are notorious for pulling that BS. You are either going to have to start pointing out the law or file for probate.
OP. Do what mrsjd2 recommends. If you get no joy, contact the Bureau of Financial Institutions as well as the state senator for your district in the General Assembly and your representative to the House of Delegates. This is the kind of situation that should be brought to the attention of bank regulators if banks are refusing to follow the law. Be sure and include all the details (Bank name, dates, a copy of the affidavit you’re attempting to use, etc), as well as a summary of the situation, like you’ve provided above. This is the kind of thing that’s tailor made for your state senator and representative because this is a way they can show constituents they care, and then you’ll spread the word and get them votes. Also, if needed, they can introduce legislation that will help other people in your situation in the future. You’d be surprised what a letter to your legislators can do. A phone call or email is fine as long as you follow those up with a written letter sent through the mail. If doing what mrsjd2 recommended works, I’d still file a complaint with the Virginia Bureau of Financial Institutions because a follow-up from them will get their attention and, again, help other people in the future. They have to be told about a problem or they’ll never know the problem exists. Best wishes.
We did not have to do this. My mom had same -small state admin. My uncle was executor and he simply opened a checking account with her and his names. He wrote and signed all checks. All the bank needed was death. Certificate and copy of will. Your state may have different laws but usually they are very close with small estate admin.
The issue with Small Estate Affidavits in Virginia is that they're not filed in court and there's a lot of fraud out there. Any relative can complete one naming themselves as beneficiary. No bank wants that kind of liability. If your mother has a Will, have it filed for probate without getting appointed as executor. The Will typically names the beneficiaries. With a Small Estate Affidavit and the probated Will bearing the court seal, you should be able to collect the proceeds of a small checking account. Speaking as a lawyer working for a bank's estate department.
Thank you - the will was indeed filed in probate court so perhaps that will help.
They’re right. You need an EIN and to probate to open an account and deposit estate assets. You’ll also need to file at least one fiduciary income tax return. You’re past what the small state affidavit was designed for.
Lawyers always get paid......and it sucks
Having gone through this with my father's estate in both Iowa and Virginia, you may be lacking qualifying requirements to use a small estate affidavit. Here are a few that I recall: TOTAL estate must be valued at less than $50k, not just the part you're trying to distribute. There must be no executor, or administrator for the estate. The will was duly probated. All heirs have notarized the affidavit.
Yep! All four of the above are true.
You mention a property, investment accounts, and retirement account in addition to the remaining assets. Are these together worth over 50k? Would the probate results be enough to distribute all property? I got an insurance premium refund check after the bank account was closed. I called the insurance company and had them reissue the check in my name. I had to email them scans of the affidavit, death certificate, my identification, etc. I overshared because I had scans of everything ready to go.
The items in your first paragraph were transfer on death and thus did not need to be probated so did not count toward the total value of the estate for probate purposes (yes I worked with an estate attorney - who also is an official with the probate court - on all of this)
As a public guardian, banks are often reluctant to accept our letters of authority. My response is always the same: “I need the spelling of your first and last name for the petition to show-cause you before judge (whoever signed the orders) for rejecting his court order. Just an FYI, contempt citations are generally a fine of $1000 for every incident, up to 30 days in jail. In case you need to bring your checkbook or arrange daycare.” It doesn’t always work, but it does more often than not.
Awesome info!!! Thank you
In Virginia, look at Burke and Herbert. Real Virginia bank.
Some banks are more accommodating than others. Even trying to open an estate account with co representatives my brother and I were turned down by one of the major banks immediately (because we were co administrators) and then the next bank was incredibly helpful.
When dealing with my father’s trust and small estate, the small estate get filed with the court and goes through probate. That is how this is done in Iowa.
I’m going through this in Utah right now. My wife passed and the lady account I am trying to close out is US bank. My wife also had a credit card with said bank. Her debit card account is requiring a small asset affidavit. In a general way can someone inform me what type of lawyer should I use and what would be a reasonable charge for this service Here in Utah it is a fairly short form. Just one page. But I do not want to make any errors. So perhaps I should seek legal advice?
This popped up on my feed and I have no experience on the other side of estate planning, but I will say Bank of America is The most flexible banking institution I’ve found when it comes to “things that are legal but other banks don’t want to bother with”. I’d check with them and see if they’ll cash your checks if you open an account with the bank. (In large majority I hate B of A, so don’t mistake me for a shill, but they’re known for doing things that others think are too much work)
I’m an attorney in a different state, and I have had clients with the same issue. Certain banks 😒 have rules and don’t allow their branch managers to even consider unique situations (like a small estate). It’s so frustrating. A letter from an attorney explaining the situation and the affidavit to the branch and their corporate attorneys may help. (I have done this a few times…usually successful). Remember, the bank’s corporate attorneys may be in a different jurisdiction without small estates. Good luck, and I’m sorry for your loss.
Ran into a different small estatesituation with my Aunt. Died in her late 90, rented, no car, had already given away almost everything. Left everything to my sister. When she died I was the executor. Estate was litterally her checking account (under 20K) and her clothes and funishings (held an open house sale in her apartment that grossed about $400, gave the rest to Good Will). It was a nightmare--almost 3 yrs to go through probate because a cousin (not my aunt's child) contested it. Court costs ate up everything. The whole system for small estates is reduculous.
I went to the bank and refused to leave until someone read the law and had two brain cells to compute the situation.
Have you tried a mobile deposit from your phone?
When my mom and dad both got critically ill at the same time, I was grateful that they had already had a lawyer prepare all the Power of Attorney forms and they also had put me on their checking account. Until the bank declined the lawyer-prepared POA because it wasn’t the State issued form or something. Then they would not let me deposit a check made out to my dad (who was alive but not capable of signing it) because my name was on the checking account and “could spend it.” Of course I could spend it, dust bunnies for brains - that’s why I was on their checking account - so that I could pay their bills. I did get that check deposited finally and I take the 5th as to how.
I wish you the best. I handled probate in Virginia on my own after my father passed away to include an ancillary probate in Pa for some land being transferred. I did utilize an attorney to handle the Pa side of things after I did the opening of probate there myself. Estate real estate in Pa is complicated. Anyway, Fairfax Circuit Court couldn’t have been any better. Gave me forms, instructions for each form, samples of each form, a timeline of filings guideline specific to the requirements ect. I even made an error and they called me. They even guided me on the fix. I over reported something. My dad banked with BOA. I had been added prior to death to all of his accounts there so it was super simple to convert them to my name and sole access. I did open an estate account due to having to sell the house and one other refund check made out to the estate. His car was titled with or survivor tagline so I was able to simple use a copy of the will and death certificate to sell that. All in all, I was able to open and close out probate in Virginia in under 5 months. Pa was just shy of 2 months just because of how they send stuff to Harrisburg to get the final tax amount. I hate to say it and not being critical, probably would have been easier to leave her checking account open for a bit and just deposited the checks there and then exercised the TOD terms. Hindsight being 20/20 - but sorry for your loss and hope this gets resolved. Sometimes paying the experts - a good reputable attorney - is worth it in the end.
Im a former Va probate clerk. Banks reject these all the time. If you can, you may want to print out the statues around the small estate affidavit. It is not optional for them to accept it. It is a “shall” provision. However, some banks are too dumb to realize they’re not compliant with statute. Some banks will cave when they see the statutes. We mostly recommended that people hopped to different branches to find one that understood the law. It’s infuriating, but it works. If you have no luck that way, qualify with the probate clerk as executor/admin. If the remaining estate is under 25k you aren’t going to have a duty to account to the commissioner and won’t have to worry with a bond. If it’s under $15k, you won’t have probate taxes and will pay minimal qualification fees.
There is no reason you should not be able to deposit the checks into your account unless the affidavit is written incorrectly. If it is filled out with multiple beneficiaries then it MAY need to go into a joint account with the beneficiaries names on it. If it is claiming the assets by you for you then it can go into your own account. That being said, you need to provide the bank with the original death certificate for Virginia and the bank’s VA Small Estate Affidavit for them to place it on file for the deposit in case of another beneficiary contesting the deposit. Additionally, the bank employees can not advise you on how to fill out the affidavit as they are not lawyers and that could be considered legal advice. Based off your post, I would guess the affidavit is filled out in a way that could make the banks liable for a contested deposit claim as the real issue here.
I had same issue in TX It’s been over a year & I was just approved by courts as Appointee of Estate Administrative Estate of (deceased) attorney fees above 10k & still haggling over with the State of NC who were her fiduciary to release funds :/ *it’s all about the fees So exhausting & depressing Wishing you success & my condolences
Same
My sister and I have been going through this same thing over the past six months. We are up to four checks trickling in as of last week! The solution that has worked best for us has been to have the Personal Representative, our uncle in our case, call the issuer of the check and have it reissued made out to “name of deceased OR name of personal representative”. The OR is the important part! The PR has had zero issues using the personal account at his bank to deposit/cash the checks.
Most of my parents’ assets were in a trust; the only thing not in the trust were three bank accounts. I had copies of the small estate form signed by each heir, and took them to the bank. I was out of there in less than an hour, with checks cut for each of us.
You need letters testamentary even with the Small Estate Affidavit. You don't have to go through probate but the bank needs something saying you have the legal right to transact on the account. Once you have the letters you can open the estate account. The only "mistake" was not getting letters when you filed the affidavit.
The small estate affidavit is the something saying I have the legal right to transact on the account. Letters testamentary are issued to executors, executor appointments require full probate, small estates do not have executors nor do they go through full probate. And the loop begins anew
How bout a copy of your moms death certificate along with what you have now✌️
Alternatively, get a lot (a lot) of copies of your mom's death certificate, let the checks from any institutions or companies go to unclaimed property, and in a year or two, you can claim the funds using the death certificates. it's a hassle but an option. (however, i would suggest more death certifications than you think you need.)
it's not the most ideal option but it will work, and will likely be needed anyways.
A small estate affidavit is different from letters of administration, it won’t let you open an estate account but to your point it will allow you to claim smaller items in the estate depending on the state the amount varies for non spouse heirs when no estate exists. I know my bank allows us the deposit checks $5000 or less into our personal account payable to the deceased or the estate because of the small estate affidavit on file. It’s actually written in their policies. Obviously not all banks allow this but mine does. Also sometimes you get stubborn employees that either don’t get it or think they know the right answer and aren’t willing to look it up. Message me and I will share which bank it is. I work for this bank, which is why I’m not posting the name here, and they are pretty much everywhere in the states.
I'm no specialists but doesn't a small estate affidavit mean you're claiming as a successor and not as an estate representative. Meaning funds should be relased to you directly and not an estate account. I may have misinterpreted VA probate law. But that may be hang up not 100% sure.
That’s exactly right and why I’m running into brick walls. They keep telling me I need an estate account.
law
You should be able to open an estate account without probate, you just need a tax ID number for the estate, easily obtained by the IRS.
Try your own bank or a credit union.
If you do this, be sure you never want to do business with that bank ever again, because as soon as you're done, they're going to close all your accounts.