February 1, 2010
By: Adam J. Poteracki
We often counsel our clients against storing their Will in their safety deposit box because doing so usually makes opening their estate unnecessarily complicated. Two issues usually cause the complication: finding the box and opening the box. Both of these issues may be overcome by making your executor a co-owner of the box. However, some clients may be uncomfortable giving this sort of access to their executor before it is absolutely necessary. In those cases, the Illinois Safety Deposit Box Association (“Association”) and Illinois Safety Deposit Box Opening Act (“Act”) are invaluable.
If a relative of a decedent believes that the decedent left his or her will in a safety deposit box, but does not know where the box is located, the Association may be able to direct the executor to location of the decedent’s box. The Association provides a service called “Search Your Records” that allows the association to provide information on the location of deceased relatives’ safety deposit boxes if such deposit boxes are held by member institutions.
Once the relative knows where the box is located, that person can legally gain access to the safety deposit box for the sole purpose of examining the contents to determine if the box includes a Will or burial instructions by following the process set forth in the Act. The Act allows an “interested person” (defined in the Act as any person who has access to the box during the decedent’s life, a person named as executor in a copy of the Will, or the decedent’s spouse, adult descendant, parent, or sibling) to present an affidavit to the bank stating that they are an interested person and that they believe the safety deposit box contains the decedent’s Will or burial instructions. The interested person may only remove the decedent’s Will and burial instructions. No other safety deposit box contents may be removed.
Neither the Association’s database nor the Act are foolproof. Names could potentially be mis-entered into the Association’s database or the decedent may have used an out of state deposit box. In such cases, the deposit box could be left undiscovered. The Act allows the bank to make the final determination regarding whether an individual qualifies as an “interested person” and does not provide any method for appealing a bank’s refusal to open a safety deposit box. A bank could refuse to open the box and prevent the potential discovery of a will if the “interested person” does not meet the strict definition of interested person under the Act.
It is better to tell your executor (and successor executors) the location of your important estate documents and be sure they have access to the original documents than to store them in your secret safety deposit box and rely upon the Association’s database and the Act. However, in a pinch, the database and the Act provide helpful tools.
If you have questions about accessing a safety deposit box or the preparation and storage of Wills, burial instructions, and other estate plan documents you can contact a DiMonte & Lizak estate planning attorney.