At first, it may seem like a responsible idea to put your important estate planning documents into a safe deposit box at a bank, where the documents will be safe and protected. But storing your documents this way could result in unintended consequences upon your death.
If a Personal Representative (PR) or Trustee has not been given the authority during the owner’s life to access the owner’s safe deposit box, then at death, they will not be able to immediately access the contents of the owner’s safe deposit box. Further, if the safe deposit box is not under the name of the trust, then even a Trustee will not be able to immediately access the contents of the safe deposit box.
The inability to immediately gain access to the contents of the safe deposit box can cause unnecessary issues for a PR or Trustee who is just trying to do their job. In many cases, the situation looks something like this: an individual will store their estate planning documents in a safe deposit box that they own, thinking that is the best (and safest) place to store them. Then when the individual passes away and their family needs to retrieve the estate planning documents, the family either (1) does not know where the documents are; or (2) is not allowed to access the safe deposit box because they do not have authority to do so. In this difficult scenario, the law provides that even before a PR is appointed, any interested person may petition the probate court to open the box to look for a will or burial plot deed. Before you could even use this law, you would first need to know the name of the financial institution and location of the branch where the safe deposit box is located.
Once the safe deposit box has been located and a petition has been filed with the probate court, then the probate judge may issue an order to immediately open the safe deposit box. Once the order has been issued, the safe deposit box may be opened in the presence of an officer or authorized employee of the bank. Once the safe deposit box has been opened and the contents have been revealed, all those in attendance must sign a certificate stating whether a will or burial deed was found in the box and that no other items were removed. Items contained in the safe deposit box other than the will or burial plot deed may not be removed from the box at that time. The certificate and any will or burial plot deed found in the box are to be delivered to the probate register.
As you can see, there are various steps to this legal process of gaining authorization to a safe deposit box. In the midst of an already chaotic and emotional time, these preventable and unnecessary steps can add yet another thing to the plate of your PR or Trustee. There are two possible solutions that can alleviate the need for these unnecessary steps:
- Put your estate planning documents elsewhere. You can keep your documents in another place that is safe, yet easily accessible to your PR or Trustee (i.e. in a place that does not require a legal authorization process or in a place that is very safe and secure, yet known, by your PR and Trustee); or
- If you are determined to have your estate planning documents stored in a safe deposit box, then you should consider adding someone else on as a co-owner of your safe deposit box. This person would now know exactly where your estate planning documents are stored and would have the authority to access the box even after you are gone. You would ideally name your PR, agent in a power of attorney, or Trustee of your trust as the co-owner. A word of caution: You should choose this co-owner carefully since this person will have authority to access your safe deposit box both during your life and, most importantly, once you pass away. This co-owner can be anyone you choose but would ideally be the same person you already trust to be your PR or Trustee. Finally, if you change your mind about who the co-owner should be at any time, be sure you remember to remove that person from having the authority to access your safe deposit box.
These are just some points to consider as you select the best place to safely and securely store your estate planning documents. Please contact us if you have any further questions or would like to talk over any additional considerations.