When a close family member dies, one of the many tasks faced by his or her heirs is searching for, and locating, a will. In many cases the decedent (person who died) locks their will in a safety deposit box thinking that it is the best place for important documents.
Historically, the people with the right to access a safety deposit box are the decedent, other lessees on the box contract and the executor of the decedent’s estate (who stands in the shoes of the decedent). In cases where the decedent was the sole lessee of the box, or last surviving lessee, the only person legally entitled to access the box is the executor.
This creates an obvious conundrum. The will is needed to name the appropriate executor, but the only way to know who to appoint as executor is to have the will in the first place. Without specific legislation addressing this problem, the family must engage in wasteful (and expensive) court proceedings. In these proceedings, the court ultimately appoints a representative to retrieve the will and then the court uses the will to name an executor.
Fortunately, the Illinois legislature enacted the Safety Deposit Box Opening Act (755 ILCS 15/1) to solve this problem. The Safety Deposit Box Opening Act generally allows an “interested person” to have the lessor of the box (usually a bank) open the box and inspect it for a will and/or burial instructions without the probate court appointing a representative. If a document that appears to be a will is found, the lessor files it with the clerk of the probate court in the county where the decedent resided at the time of death and the probate court uses the will to appoint the proper executor.
Below, I will address the common questions people have when applying the Safety Deposit Box Opening Act.
When may the box be opened under the Act?
The safety deposit box may be accessed when the sole lessee of the box has died or, if more than one lessee, the last surviving owner has died. If there are multiple lessees and one or more is still living, the box may not be accessed under the Act.
Who may open the safe deposit box?
The Act states that only an “interested person” may access the safe deposit box under the provisions of the Act. An “interested person” is a defined term that includes the following people.
1. A person who had a right to access the safe deposit box immediately before the death of the decedent as a “deputy” of the decedent;
2. The executor of a decedent’s will (before an estate is opened);
3. The spouse, adult descendant (children, grandchildren, ect.), parent or siblings of the decedent; and
4. If no other “interested person” is available, any person the lessor decides has a legitimate interest in filing the will or arranging a burial.
What documentation is needed?
The person seeking to open the box under the Act must provide “satisfactory proof of death.” This usually means a copy of the death certificate of the sole lessee or all lessees if there are multiple lessees on the contract.
The person seeking access to the box must also provide an affidavit that states the following:
1. That the affiant is interested in finding the lessee’s will or arrangements for burial;
2. That the affiant believes the safety deposit box may contain the will or burial documents of the lessee; and
3. That the affiant is an “Interested Person” within the meaning of the Safety Deposit Box Opening Act.
When may access be refused?
The lessor of the safety deposit box must refuse access if the lessor has previously received any of the following:
1. Letters of office appointing someone the representative of the estate of the lessee;
2. An Illinois Small Estate Affidavit executed in accordance with 735 ILCS 5/25; or
3. Any other applicable court order.
The lessor of the safe deposit box may also refuse access in the following situations:
1. If the box has already been opened under the authority of the Safety Deposit Box Opening Act;
2. If the lessor has received an objection or has reason to believe there would be an objection; or
3. If the lessee’s key or combination is not available.
What may be retrieved?
When the box is opened, the lessor must remove any document that appears to be a will or codicil (written amendment to a will) and deliver it to the clerk of court in the county where the decedent resided at the time of death. If the residence of the decedent is unknown, the lessor is to deliver the will or codicil to the clerk of court in the county where the box is located.
Burial documents may be taken by the Interested Person.
No other documents may be removed under the authority of the Safety Deposit Opening Act.
Conclusion
The Safety Deposit Box Opening Act is a useful tool that allows the family of a decedent to open a safe deposit box without court proceedings and have that will filed in probate court.