Locating the deceased’s will is a necessary first step in the beginning of the probate process. Not simply because it’s ethically & morally appropriate to try your best to carry out a loved one’s expressed wishes, but also because it’s a major consideration for the particular type of probate or related probate forms the estate will need to file.
Why finding one's will after they pass matters
You should take a pretty exhausting look before calling it quits on finding the will — especially if you are pretty sure they had one. And you want to do this before you petition the probate court to formally begin the probate process.
That’s because not finding the will can lead to the estate being distributed according to intestacy laws, which are the default succession rules that govern how an inheritance is distributed. That usually means anyone who wasn’t a next of kin or immediate heir can lose out on their inheritance, and ultimately ruin any plans the person who created the will (known as the testator) had.
Getting into a safe deposit box can be a pain, so make sure you’ve exhausted every other option, including:
- Contacting the local clerk of court
- Asking other family members and friends
- Asking the deceased’s attorney
And a few other places you can read more about in: How to Find Out if Someone Has a Will (Where to Look).
You’ve looked everywhere for the will, so now what?
If you can’t find a will, trust or similar estate planning document, but do know that the deceased had a safe deposit box — then it’s entirely possible that the will could be located within the box. And if that’s the case, you’re going to run into a bit of a catch-22 sequencing wise.
Here’s the problem: access to an individual's safe deposit box is essentially “sealed” when they die. And in most states, the executor must present the will, or other court-approved probate form appointing an executor, to the financial institution where the box is located in order to gain access to the box.
If the will is inside the safe deposit box, however, the executor will not be able to present the will to the financial institution to gain access to the box. To make matters worse, not having the will also means that the executor is unable to prove the deceased individual’s intentions in naming an executor.
All that to say — it can be difficult for an individual to access a will in a safe deposit box before being appointed executor (even though it’s often needed in order to be appointed).
Unfortunately, each state’s probate laws are different when it comes to accessing the deceased’s safe deposit box without a will. So while one state might allow you to come and view the items in a safe deposit box without a will or any documents, another state might require that you receive documentation from the probate court before you attempt to open the deceased’s box.
For a complete list of safe deposit regulations by state, go to: Safe Deposit Regulations State-by-State Guide.
What to Do if You Think the Will is Inside a Safe Deposit Box
So you’ve looked everywhere for the will and think it may be inside a safe deposit box. What now? We propose the following two steps before having an executor appointed:
1. Ask the financial institution
If you know where the deceased’s safe deposit box is located, your first step should be to go to that financial institution and ask what their process & procedure rules are on opening the safe deposit box of a deceased loved one.
Although the financial institution’s rules will likely be shaped by each state’s laws, each institution might have slightly different requirements for what you need to access a loved one’s box. For example, national banks and local credit unions often have different regulations.
The employees at the financial institution will often be able to point you in the right direction for accessing a loved one’s safe deposit box. They might tell you that all you need is a death certificate, and then you’re all set. In other instances, it’s possible the institution has an internal process allowing multiple employees to check the box together (as witnesses) to determine whether a will appears present.
2. Ask the local probate court
If the financial institution is unable to allow you to view the deceased’s safe deposit box without a will, your next step is to go to the probate court.
The problem of the will possibly being in the safe deposit box is not an uncommon occurrence, and the probate court will be able to assist you in accessing the box.
Some states — like New York — the probate court may give you an “Order to Open” document. This document certifies that you are a representative of the estate and have been granted the authority to open a deceased loved one’s safe deposit box. In these instances, the financial institution will accept the court-ordered document’s authority and permit access to open the safe deposit box.
In other states — like North Carolina — the Clerk of Court may actually schedule an in-person visit with the financial institution on behalf of the deceased’s estate in order to inspect the contents of the box for the presence of a trust, will, or other related estate planning document.
Please note that in these instances, a probate clerk is simply checking for the presence of legal estate planning documents that may change the probate process and is not authorized to discuss or remove other contents from the safe deposit box until an executor has formally been appointed.
A few extra steps, but it's worth the extra time (saved)
Even if you have to jump through a few hoops to open a safe deposit box, it’s still worth taking the time to potentially find a will instead of jumping into probate early or without one.
Plus, if you plan on being the executor or executrix once probate begins, there is plenty you can do in advance to keep the process moving, including:
- Understanding what you’re responsible for during probate
- Starting your inventory of assets
- Facilitating the distribution of non-probate assets