By Linda M. Toga, Esq.
THE FACTS: My father executed a will many years ago in which he disinherited my older brother, Joe, and named me as executor of his estate. Joe had been estranged from the family for years. My father recently passed away. I have looked through all of my father’s papers and cannot find the will. I vaguely remember my father telling me that he put his will in his safe deposit box so that it would not get lost, but the bank manager will not allow me to access the box.
THE QUESTIONS: How can I gain access to my father’s safe deposit box? If my father’s will is in the box, how should I proceed?
THE ANSWER: Many people mistakenly believe that their safe deposit box is the best place to keep their will. While the will may be safe locked in the safe deposit box in the bank, it will not necessarily be accessible when needed.
When the holder of a safe deposit box dies, the box is supposed to be sealed. This means the box is not to be opened unless the person seeking access to the contents of the box provides the bank with either a court order directing the bank to open the box or evidence that the person has been granted authority from the court to handle the decedent’s estate.
If you cannot find your father’s will and believe it is in his safe deposit box, you must obtain an order from the Surrogate’s Court directing the bank to open the box. To do that, your attorney will need to file an application with the court in the county where your father lived in which he or she provides your father’s name and address, his date of death, your relationship to your father and the location of the bank where the safe deposit box is located.
A small fee is required by the court for filing the application and providing to you a certified copy of the order when it is issued.
Once the court issues the order, you should arrange with the bank for a bank officer to open your father’s safe deposit box in your presence. The officer is required to take an inventory of the contents of the box and, if your father’s will is there, to send the will to the Surrogate’s Court that issued the order. All other items that are in the box must be returned to the box. You will not be able to remove the other items until your attorney files a petition for letters testamentary and the court issues those letters to you.
If it ends up that your father’s will is not in his safe deposit box, and you cannot locate it elsewhere, rather than petitioning for letters testamentary, your attorney will need to petition for letters of administration. Once you have obtained either letters testamentary or letters of administration, you will have full authority to access your father’s safe deposit box and to remove the contents.
As an aside, if you cannot provide the original will to the court as part of the probate process and are issued letters of administration, you will be required to distribute to your estranged brother a share of your father’s estate pursuant to the NYS intestacy statute, regardless of what you believe your father may have wanted.
Although you will eventually gain access to the contents of your father’s safe deposit box, the administration of your father’s estate will clearly be delayed and additional estate expenses will be incurred in order to determine if, in fact, he put his will in his safe deposit box. To avoid the delay and expense I recommend that clients keep their wills and other important papers at home in a water/fire resistant safe or storage box.
Linda M. Toga provides personalized service and peace of mind to her clients in the areas of estate planning, wills and trusts, Medicaid planning, marital agreements, estate administration, small business services, real estate and litigation. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.