Safe Deposit Boxes – Who Can Get In?

Where do you keep your original will? Some folks keep their wills in a “fireproof” box in their desk, or under their bed. At your peril, I say. The metal box may not burn but it makes a fine little oven.

Some folks let the lawyer who wrote the will hold it in “safekeeping” for them. This is usually a service provided by law firms at no charge. The practice of lawyers varies. Some hold it in a safe deposit box in the name of the firm. Some keep wills in “fireproof” cabinets or in safes at their offices. Generally speaking, lawyers like to hold wills because that means the heirs have to come to that lawyer to retrieve the original will; that lawyer gets first crack at being retained to settle the estate.

Why not put your original will in safe deposit box at the bank? I often recommend that wills be put in the client’s safe deposit box. “But,” you cry, “the safe deposit box is sealed when I die.” That is simply not true. Your family will always be able to get your will out of the box.

There are some restrictions on entry into a safe deposit box in the decedent’s name. The purpose of the restrictions is to prevent inheritance tax evasion. If unreported cash or other valuables are stored in the box, the State wants to make sure that these items are reported and that inheritance tax is paid on them. Nevertheless, banks recognize the right of the family, next of kin or executor (if known), to search the contents of a decedent’s safe deposit box for wills, codicils, trusts, life insurance policies, and cemetery deeds. If the key cannot be found, the box can be drilled. The law permits removal of such documents provided a bank employee certifies that no other assets have been removed. It is worth noting that the bank is entitled to demand that wills or other documents remain in their custody until lodged with the Register of Wills, though they seldom insist on this.

The restrictions on entry apply to a safe deposit box “in the decedent’s name.” A safe deposit box is considered to be “in the decedent’s name” if it is registered in the decedent’s name alone, if it is registered jointly in name of decedent and one or more others (except husband and wife), or registered in a partnership or trade name where decedent had access to the box, a principal agent or deputy. “In the decedent’s name” is a term defined in the Pennsylvania state statute. It seems odd but a box in the joint names of the decedent and a spouse is not “in the decedent’s name,” while a joint box in the names of the decedent and any other person is “in the decedent’s name.”

None of the restrictions on access are applicable to boxes registered in the name of decedent and spouse. In that case, decedent’s surviving spouse may enter the box and remove anything with no restriction whatsoever.

After the swearing in of an executor, it is the executor’s responsibility to enter the box to collect assets. The executor must arrange either for the presence of a bank employee or a Commonwealth representative at the time of entry. It is the duty of the bank employee or Commonwealth representative to list the contents of the box or to certify that only the will or cemetery deed has been removed.

If the safe deposit box was rented jointly by decedent and another surviving party, the right of entry is probably limited to surviving joint owner although the restrictions about inventory still apply, even to this joint owner.

Subsequent entries by the executor or surviving joint owner are free of restriction.

Inventorying the safe deposit box is always part of the estate settlement process. Complying with the requirement about attendance of a bank employee or Commonwealth representative is not difficult. Since the safe deposit box is probably the “safest” place, please consider keeping your will and other valuable papers there. Although this discussion may suggest a complicated procedure to lay persons, in actuality, bank personnel are accustomed to handling this in the ordinary course of their business.