Two New Laws That Will Impact Deposit Accounts

in News Center
tom wolfe
Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

Governor Gavin Newsom signed a number of bills into law in 2019, but two pieces of legislation in particular will require some procedural changes for frontline staff.

Increase in Small Estate Affidavit Dollar Threshold

Effective Jan. 1, 2020, AB 473 (Ch. 122, Maienschein) increases the dollar limit for the administration of small estates without probate under Probate Code §13050, et seq, among other Probate Code dollar limits, and provides for automatic future inflation adjustments.

Under Probate Code §13100, if the gross value of the decedent’s real and personal property in California does not exceed $150,000 (subject to specified exclusions under §13050), and provided 40 days have elapsed since decedent’s death, the decedent’s successor may do any of the following by affidavit or declaration under penalty of perjury, without letters of administration or a probate action:

  • Collect any money due the decedent (including deposit accounts)
  • Receive any tangible personal property of the decedent
  • Have any evidence of a debt, obligation, interest, right, security, or chose in action belonging to the decedent transferred, whether or not secured by a lien on real property

Effective Jan. 1, 2020, the dollar threshold to use this affidavit procedure will increase from $150,000 to $166,250. The dollar threshold in effect on the date of the member’s death will govern, regardless of when the affidavit is presented.

This amount (along with the other dollar thresholds adjusted by this bill) will be adjusted by the Judicial Council every three (3) years beginning on April 1, 2022 based on the Consumer Price Index for All Urban Consumers (CPI) for the previous 40 months (rounded to the nearest $25). At that time, they will publish a list of the current dollar thresholds, together with the date of the next scheduled adjustment.

  • If the decedent dies prior to April 1, 2022, the dollar amount reflected in the affidavit text shall be $166,250
  • If the decedent dies on or after April 1, 2022, the list of published adjusted dollar amounts in effect on the date of the decedent’s death must be attached to the affidavit

Reference: Amend§ Probate Code §§13050, 13100, 13101, among others.

New Exemption Rules for Bank Levies on a Money Judgment

SB 616 (Ch. 552, Wieckowski) makes certain amendments to the laws governing the levy process for civil money judgments.

Effective Sept. 1, 2020, SB 616 amends the filing deadlines and procedures as follows:

  • Currently, the account holder may claim certain exemptions from levy by filing a claim of exemption with the levying officer within 10 days of being personally served with the notice of levy (within 15 days if served by mail). This is increased to within 15 days of being personally served with the notice of levy (within 20 days if served by mail).
  • Currently, the judgment creditor may file an objection within 10 days of being served with the claim of exemption. This is increased to within 15 days of being served.
  • Currently, if an objection is filed, a hearing of the claim of exemption will be scheduled to take place within 30 days. Under SB 616, a claim of exemption will be deemed filed on the date mailed if it is assigned a tracking number; and otherwise, on the date received by the levying officer.

Effective Sept. 1, 2020, SB 616 also creates a new automatic exemption for all funds in an account under the minimum basic standard of adequate care for a family of four (4), as established by Welfare and Institutions Code §11452 (currently $1,724).

  • This exemption is not applicable when the judgment is based on wages, spousal, or child support owed. (The Writ of Execution will now specify if this is the case.)
  • SB 616 also clarifies that, when a financial institution is required to apply other state or federal exemptions to the account (e.g., direct deposit of Social Security), those other exemptions will count toward the automatic exemption amount. If the other state or federal exemptions exceed the automatic exemption amount, then only the other state or federal exemptions apply.
  • The automatic exemption is limited to one (1) bank account per debtor.
    • If the debtor has multiple accounts at the same financial institution, the financial institution has discretion to select the account to which the exemption will apply (unless the court orders otherwise).
    • If the debtor has accounts at more than one (1) financial institution, the judgment creditor must seek a court order specifying to which account the exemption will apply (or the judgment debtor may do so).
    • None of these provisions create a cause of action against the judgment creditor for execution of the levy or against the financial institution that carries out a levy in compliance with a court order.

Effective Jan. 1, 2020, all funds in a bank account provided to the account holder by the Federal Emergency Management Agency (FEMA) are exempt from judgment levy.

Reference: Amends Code of Civil Procedure §699.520, 699.540, and 704.070; amends, repeals, and adds Code of Civil Procedure §§703.520 and 703.550; adds Code of Civil Procedure §§704.220, 704.225, and 704.230.

Article by Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

Pin It