San Antonio Express-News
Copyright 2009, Paul Premack
July 21, 2009

Serious Legal Issues Call for Lawyer's Help
-and-
Accessing a Safe Deposit Box

Dear Mr. Premack: A family member recently passed away. I talked to the county judge and was told I should file a muniment of title probate. Where can I get the forms to file a muniment of title? – SE

Dear Mr. Premack: Do I need to hire a lawyer to file an Affadavit for Heirship? No will was written, all family agrees Mom should be on the deed. – SC

You are both asking the same question: can I handle a probate issue without hiring a lawyer? The legal answer is clearly “yes” if you have proper standing (for instance, to file the Will as a muniment of title you need to be an interested party: the executor or a named devisee).

But just because you can do something does not mean you should do something. If you have a toothache, you can diagnose the situation for yourself and you can extract your own tooth, but should you? No. It is painful, complex and likely to cause undesirable complications. You go to your dentist and pay what it takes to get the problem fixed professionally.

The same applies to serious legal procedures involving ownership of valuable assets like houses. Go to a specialist lawyer who will charge a reasonable fee, do the work properly, and fix the situation free from further complications. (Not to be overly picky, but the legal title is “Affidavit of Heirship” and the word “affadavit” is spelled “affidavit”. Really, there are reasons to hire a professional to get this done correctly.)

Dear Mr. Premack: My mother had a safe deposit box in her name only. After she died I spoke with some friends who told me I should probate her Will in order to obtain access to the box. It is possible that there is nothing of value in the box. Is there a way for me to access the safe deposit box without having to file probate? – SE

For years, there was a legal requirement that the safe deposit box be sealed when a renter died. Before access was allowed, an Executor had to be appointed by the court. Many people decided to store their important papers in other locations. The legislature recognized the problem and changed the laws.

When there is more than one renter, Texas law no longer automatically seals a safe deposit box. If two or more people jointly rent a safe deposit box and one of them dies, the bank must allow the survivor free access to the box. The bank cannot restrict the survivor from adding or removing items.

On the other hand, if one person alone rents a safe deposit box, it is still sealed when that person dies. The bank can (but is not required to) allow a limited examination of the box by the surviving spouse, the parents or adult descendants. Also, the Executor (after showing the bank a photocopy of your Will) can inspect the box.

You should start with asking the bank to allow you to inspect the box. A bank officer must oversee the inspection. Only certain items can be removed from a single-renter box. For instance, the original Will can be removed but must be turned over to the Probate Clerk. Life insurance policies can be removed, but must be given to the named beneficiaries. The deed to a burial plot can be removed, and can be given to you (the person examining the box).

If anyone plans on keeping important legal papers in a safe deposit box, find someone trustworthy -perhaps the same person named as your Executor or as agent in your Durable Power of Attorney. Have that person sign the box rental agreement, too. Don't keep important legal papers in a box that has only one renter.