Another post on the hassles posed by the policies of many banks.  I hope this isn't getting old yet. 

I represent a man whose father passed away last month.  The father was also a client.  The father lived here in Colorado.  The son lives out of state.  The father's will named the son as personal representative of the father's estate.  The probate court here in Colorado admitted the will to probate and appointed the son as personal representative to handle the estate.  So far, so good, right?

The father had a safe deposit box in a bank here in Colorado.  The bank insists that the only person who can access the safe deposit box is the son and that son must travel to Colorado to do so.  Son resisted this onerous requirement and wants to authorize his sister, who lives in Colorado, to access the box.  Bank said sister could do so by way of a "small estate affidavit."  So much for the bank's misguided belief it is relying on the law.  A small estate affidavit is only appropriate where there has not been a probate opened.  Then the bank representative said that son would have to assign all of his powers as personal representative to sister in order for sister to access the box.

That's when client called me.  Client still wants to deal with bank directly so I referred client to the statute that authorizes a fiduciary (such as a personal representative or trustee) to delegate powers by way of a power of attorney.  Then I drafted a power of attorney with just that language and sent it to the client with the statute that says that if the bank wrongfully withholds property belonging to the estate it can be held liable for costs and attorney's fees.  We'll see how that goes.

This experience is another reminder of the problem we have trying to deal with bank policies that don't seem to anticipate that a bank customer may become disabled or die while there is an account or other asset at the bank . 

In this very blog I've advised anyone who is doing estate planning to consider working with a smaller community bank because their policies can be more understanding.  Yet where your agent or personal representative doesn't live in the same state you do, these smaller banks may create new obstacles because they don't have any outlets outside the state and they insist on "in-person" contact with your agent or personal representative.  While banks do have recent "know your customer" laws that require them to get more information on customers than they did before, so far no bank has been able to provide me with any law that requires them to insist that an agent, personal representative, or even their own customer, must appear in person.  There are legitimate banks that only do business on the Internet , for goodness sake. 

So what does someone do in trying to administer an estate or plan her own estate to minimize hassles for loved ones?  As far as bank policies go, you can plan ahead and ask your bank what it will require of an agent, personal representative or successor trustee to access your property.  Try to get them to provide you with that information in writing. If the bank's requirements seem inflexible and onerous, ask the bank next door and move your assets to a more flexible bank.

What does the personal representative or agent do when it's too late because the customer is already disabled or dead?  I'm not sure I have a clear answer, except to show the statutes that give the personal representative the authority and duty to collect the deceased's property, clarify that the personal representative has the same rights the deceased had, and the authority of the personal representative to delegate his or her duties when necessary.