Why You Should Never Keep a Will in a Safe Deposit Box

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Although it is true that a safe deposit box is a safe place to keep important documents and/or assets, many people do not realize that once the bank is notified of the death of an owner, the box cannot be opened without a court order. This is true even if there is a joint owner named on the safe deposit box and is unlike other jointly owned assets as the assets do not automatically pass to the joint owner. Many clients who are joint owners, including spouses, are surprised to find out that they are denied access even if they arguably own the assets in the safe deposit box. That is if the existence of the safe deposit is even known.

The original will is needed in order to probate a decedent’s Will in Surrogate’s Court and to have an executor appointed to administer the estate. Therefore, the Will being locked in a safe deposit box is the first hurdle that must be overcome. The only way to access the safe deposit box is with a court order. New York Law allows the executor named in the decedent’s Will, the nearest surviving distributee or an interested party, to petition the court for an order to open the safe deposit box. Even if a nominated executor is aware that the Will is in the safe deposit box, a petition for a court order must first be obtained before the probate process can begin.

Once the order is signed, the safe deposit box must be opened in the presence of a bank officer and an inventory of the contents made. Any assets within the safe deposit box must stay until an executor or administrator is appointed by the court to further collect the assets of the estate, which requires another petition to the court in a probate or administration proceeding.

Individuals may be better advised to keep the Will or other important documents in a fire proof safe within their home so that the nominated executor has immediate access. A Will can also be filed with the Surrogate’s Court for safekeeping.

– Melissa Doris, Esq. and Nancy Burner, Esq.

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Burner Law Group, P.C.

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