Banking Law Alert Newsletter – October 2014

NEW REQUIREMENTS FOR NOTARIES 

Effective October 1, 2014, the Tennessee Legislature amended the statutory provisions for notaries. Now, Tennessee notaries are required to keep a record in a well-bound book of their services. Prior to the amendment, a notary was not obligated to keep any record of the items that they notarized.

The statute does not provide any guidance on what exactly the notary should record. Moreover, the statute is silent on the penalties or punishment for failing to adhere to the amended statute.

Best Practice Advice: Maintain a record of all notary services – including the date, name of the person, contact information, and fee information (if a fee is charged). We recommend that you keep a bound book, spiral notebook, and/or computer program to document, for future review, all of the above information.

NEW STATUTES REGARDING CHECKS PAYABLE

TO A DECEASED CUSTOMER

For some time now, banks have had the discretion to allow the withdrawal of funds from a decedent’s bank account after thirty (30) days from the date of death and where there is no notice of an estate being opened. Currently, the maximum amount which a bank may allow to be withdrawn from an account under such a scenario is $10,000. If there are suspicious circumstances surrounding the account and/or the person who is requesting to withdraw the funds, then the bank may refuse to allow the withdrawal until an estate is properly opened and documentation of such is properly provided to the bank. A few, new statutory provisions add some additional leeway to the bank.

Pursuant to these new statutes that became effective on March 28, 2014, banks also have the discretion to cash a check payable to a decedent so long as the check does not exceed $2,500. The following people are entitled to negotiate a check payable to the decedent: the executor named in any will that is known by the bank (whether probated or not), any executor appointed by a court whether active or discharged by a court, or in the absence of a will or a court appointment with an estate, the surviving spouse or next of kin.

The person who is seeking to cash the check must provide by an affidavit to the bank that contains the name of the decedent, the date of death, and the amount and the payor of the check. If the check proceeds are going to a third party for payment of a debt, then the affidavit must identity the creditors to which said proceeds are going to be paid, if applicable. If the proceeds are to be paid to anyone else, then the affidavit must identify the decedent’s surviving spouse and heirs at law, provide their residential addresses, affirmatively state that there are no unpaid creditors or taxes (income, gift, estate, inheritance, or transfer) that are owed by the decedent, and provide that the funds shall be distributed in accordance with any known will or testamentary document of the decedent.

Best Practice Advice: The affidavit can be provided under penalty of perjury. Moreover, the bank can require the person who is obtaining the proceeds to indemnify the bank from claims involving said funds. So long as the bank complies with the provisions of this new statute, then it is protected from any damages and liability.

 RKRB NEWS

The 2015 Edition of Best Lawyers in America© includes seven attorneys from RKRB – Will Bell, Robert Binkley, Jr., John Burleson, Jerry Kizer, Jr., Marty Phillips, Rusty Reviere, and Laura Williams. Rusty was named the 2015 Memphis-Area Insurance Law “Lawyer of the Year.”
On October 19, 2014, The Jackson Sun named Adam Crider as one of its inaugural “Forty Under 40.” Adam is a member of RKRB and practices with the Business Group – focusing most of his practice on collection law (creditor’s rights), real estate transactions, estate planning, probate and conservatorships, and general business law.
Will Bell was a featured speaker at the annual Probate & Estate Planning Conference for Tennessee Attorneys in Nashville, TN on October 23-24. Will covered litigation issues in probate cases as his topic at this event.
Brad Box, a member of RKRB, recently received the 2014 Fred H. Seivert Award by DRI, formerly known as Defense Research Institute. The award is presented to an individual who has made a significant contribution toward achieving the goals and objections of the organized defense bar.
V. Latosha Dexter was recognized as one of nine “Next Gen” leaders of Memphis by MBQ: Inside Memphis Business magazine. Latosha is “of counsel” with RKRB and primarily works in the area of employment law.
Rainey, Kizer, Reviere & Bell, PLC congratulates Adam Nelson and Brandon Stout for passing the Tennessee Bar Exam. Both Adam and Brandon are new associates with our Jackson office. Brandon is with our Medical Malpractice Group and Brandon is with our Tort/Insurance Group.