This column first appeared in the San Antonio Express News and other Hearst Newspapers on March 4, 2019.
Dear Mr. Premack: I am the only child of my parents, and the only heir in the Will. My mother has been gone several years, and my father died last month. I have a photocopy of his Will which says that I am to be Executor. He told me that the original is in his safe deposit box. While I have the box key, I am not a signer on the box. I spoke to someone at the bank who told me they will only let me in if I get a court order. How do I go about getting a court order to access a safe deposit box? – MH
Safe deposit boxes are intended to be secure. Granting access has been quite strict in the past, but over the years the Texas Legislature has modified and clarified those laws to allow access under certain circumstances. Historically, when any safe deposit box renter died, the box was sealed until either 1) a court order allowing access was obtained, or 2) the court-appointed Executor presented the bank with Letters Testamentary from the court.
More recently, however, the law has been modified. The safe deposit box can be accessed, without a court order, under these circumstances:
First: If more than one person are listed as co-signers on the box, then a co-signer can access the box regardless of the fact that another co-signer has died. Sadly, your father did not make you a co-signer so this does not help you to access the safe deposit box. But it is a warning to others who have rented boxes: if there is someone you trust, consider adding them as a co-signer so they can access the box if you die.
Second: If there is no co-signer, then the bank must permit examination of the safe deposit box (upon the death of the renter) by a) the surviving spouse, b) the decedent’s parent, c) a descendant of the decedent who is at least 18 years old, or d) a person named as Executor in a copy of a document which appears to be the decedent’s Will.
The examination must take place in the presence of a bank officer. Texas law allows the bank officer to deliver certain documents to certain people prior to court appointment by the executor. For example:
· If the original Will is found, it can be released to the person named as Executor in the Will, or may be released to the clerk of the probate court in the county where the decedent had resided.
· If a deed to a burial plot is found, it may be released to the person who asked that the box be examined.
· If a life insurance policy is found, it may be released to the beneficiary named in the policy.
All other contents of the safe deposit box must remain undisturbed, though the bank can prepare an inventory of the contents of the box. Eventually when an Executor is appointed by the court, and that Executor presents Letters Testamentary to the bank, the box can be reopened. The court-appointed Executor is allowed, in an unsupervised manner, to examine and to remove the contents of the safe deposit box. The court-appointed Executor is allowed to (and probably should) terminate the rental agreement on the box after it is emptied.
So, when the banker told you that you need a court order, the banker was misinformed and was not following current state law. You are both the adult child of the decedent and the person named in the document appearing to be his Will. Thus, the bank should allow you, without a court order, to examine the box and the Will should be released to you (or to the court) if the original is found in the safe deposit box.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues.