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Is There a Will in The Safe Deposit Box?

By Lane V. Erickson, Idaho Estate Planning Attorney

As an estate planning attorney, part of my job is to help my clients through the many problems and issues that can arise when it comes to estate planning or probate in Idaho. Usually these issues only become apparent when it’s time to do the probate after the person has already passed away.

One of the biggest immediate issues that can arise when a loved one dies, is determining whether they had a written last will and testament. The reason for this is that so long as the person has capacity, which means they have the legal ability to make decisions for themselves, they can make a Will, change their Will, redo their Will, revise their Will, or destroy their written Will if they choose to do so. This means that even if a person did have a written Will at one time, they may have changed their mind and may no longer have a written Will anymore.

The purpose of this article is to talk specifically about what you need to do if you believe there is a written Will in a safe deposit box that you cannot get access to. This is sometimes the case when a client gets a Will, and then places it in a safe-deposit box that only they have an ownership interest in. When this occurs, the bank will not allow any other person to access the safe deposit box until there is a court order through a probate requiring them to do so.

Why a Will is Important

Ideally, when it comes to doing a probate, the person who passed away took the time and made the effort to get a complete estate plan in place. This would include having a written Will where they named who they wanted appointed as their personal representative and listed who they wanted as beneficiaries of the estate to receive their money, property, and other assets after they die.

In other words, the written Will controls everything. Additionally, in order to do a probate, you have to have the original written Will to deposit with the court. There are some statutory provisions that allow a supervised probate to occur with a copy of a written Will, but this is far more expensive and time-consuming than the normal probate process.

Begin the Probate with No Will

So, what do you do if you believe there is a written will in a safe deposit box, and you can’t get access to it? The answer is to begin the probate without the Will. Idaho statutes allow this to happen based on the laws of intestacy.

The statutes that control the laws of intestacy identify who can be appointed as a personal representative. One of these individuals should begin the probate process so that they can be appointed by the court as the personal representative. Once they are appointed, the court will issue orders and other documents that evidence this person’s legal authority to access all of the decedent’s property. This would include property located in a safe deposit box.

This person should then gain access to the safe deposit box and retrieve the original written Will. Once the original Will is located, it can be deposited with the court, and then any substitutions or changes to the personal representative that is named in the written Will can be made at that time.

Begin the Probate with a Previous Will

Likewise, if you believe the original will is in a safe deposit box but you have a copy of the Will or you have an original previous written Will, you can begin a probate with that document. As was stated above, once the person who is appointed as the personal representative under the previous written Will gains control of the safe deposit box, they should then deposit the original new Will with the court. If the new written Will appoints someone else as the personal representative, the person who was appointed can step aside and allow the named person to substitute in as the current personal representative.

While it may not be an efficient use of resources or an ideal situation, this is the only means under the law that allows the safe deposit box to be accessed so the original written Will can be retrieved.

If you have any additional questions about how to access a safe deposit box, please contact us for a free 30-minute consultation where we can answer your questions. Racine Olson is the premier Idaho estate planning and probate law firm. We have helped numerous clients through issues similar to this and we are confident that we can answer your questions and help you too!

ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at lane@racineolson.com">lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho estate planning problems.

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