Small Estate Affidavits – Bank Insists on Letters

Small Estate Affidavit – Bank Insists on Letters – When the Bank Insists on the “Letters” to Transfer Property.

Adapted, with the kind permission of author Richard Wills, from “Washington State Probate,” at his Washington State Probate website.

Probably the most popular use of a “Small Estate Affidavit,” also called “Affidavit for Collection of Personal Property,” is to access a Decedent’s bank or securities account. The practical (as opposed to legal) problem is that banks, brokerages, transfer agents, and institutions in general are used to transferring such accounts through a probate proceeding, in which the Personal Representative delivers a copy of his/her Letters to the institution and requests the transfer. That’s the method that institutions are familiar with, and they have come to see it as “the proper (and only) procedure” for making the transfer.

Consequently, far too often, when a Successor presents a Small Estate Affidavit to an institution, the institution responds “We need Letters to make the transfer.”

Small Estate Affidavit – Bank Insists on Letters is effective, but how to respond to the institution? In a word, be persistent and play “broken record” (repeat items 2 through 7 below over and over to the agent):

1. To prepare for the transfer, download and print out a copy of the relevant statutes: Pro. Code § 13100-13116.
2. Include the copies in your written request or hand the copies to the agent and politely ask the agent to read them, especially Pro. Code § 13100.
3. If you are dealing with a securities transfer agent, politely ask the agent to read Pro. Code §§ 13100(c) and 13105(a)(2).
4. Politely inform the agent that your use of a Small Estate Affidavit complies with California law, and that California law does not require either a probate proceeding or the delivery of Letters for the transfer to be made.
5. If further resistance is met, politely inform the agent that if the institution refuses to make the transfer, California law allows you to bring an action in Court against the institution to compel the transfer and for it to reimburse you for your attorney’s fees and costs to obtain a Court Order to Compel the Transfer. Pro. Code §13105(b).
6. If further resistance is met, ask to speak to their manager.
7. If further resistance is met, ask to speak to their legal department.

Be forewarned, so that you may properly prepare. In your author’s experience, the grand champions of resistance to A Small Estate Affidavit are downtown branches of large banks (e.g., Bank of America, US Bank, etc.), and East Coast (particularly New York) securities transfer agents.

Courtesy of the Sacramento County Law Library

**This information should be considered GENERAL INFORMATION ONLY and is not a substitute for the advice of an attorney. I am NOT an attorney and I cannot provide legal advice**

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