Accessing the Safe Deposit Box
July 18, 2018 § 2 Comments
Lawyers are often confronted with the problem how to access a decedent’s safe deposit box. Usually no one is certain that there is anything of value in it; they just want to make sure. So do we pay the costs to open an estate for temporary administration in the off-chance that there is something there? And then do we have to go forward with an estate that maybe no one really wants to pursue?
The legislature addressed the issue with SB 2668, which took effect July 1, 2018. Here is a summary of the new law by Senator Gray Tollison, who presented a program on 2018 legislation at Summer School for Lawyers:
SB 2668 provides the order of priority by which a financial institution must grant access to a safe-deposit box upon the death of the lessee. The bill also provides that a person seeking access to a safe-deposit box must provide to a financial institution certain documentation. Finally, the bill provides liability protections to financial institutions in certain instances.
Persons entitled to access in absence of probate or administration. At any time after 180 days from the death of a sole lessee or the last surviving co-lessee of a safe-deposit box, a financial institution must grant access in the following order of priority:
(a) The personal representative named in the lessee’s will if an estate has not been opened.
(b) A successor of the deceased safe-deposit box lessee, without necessity of administration, if an estate has not been opened.
Documentation required. A person seeking access to the safe-deposit box must provide the financial institution with the following:
(a) Reasonable proof of the lessee’s death;
(b) Reasonable proof of the identity of the person seeking access; and
(c) An affidavit containing the following information:
(i) The name of the person leasing the safe-deposit box and the date of the lessee’s death;
(ii) The county in which the lessee was domiciled at the time of the lessee’s death;
(iii) A statement that no application or petition for the appointment of a personal representative has been granted or is pending in any jurisdiction;
(iv) A statement that the value of the entire estate of the decedent, wherever located, excluding all liens and encumbrances thereon, does not exceed $50,000.00; and
(v) A statement under penalty of perjury that the affiant is qualified under this bill to obtain access to the safe-deposit box leased by the individual and the facts establishing the qualification.
Interim access. A person shall be given access to a safe-deposit box before expiration of the required one-hundred-eighty-day period only to remove any will or burial instructions contained therein. The person must first meet all the requirements and conditions concerning the persons required to be present and a full inventory of the contents of the safe-deposit box; but no other contents of the safe-deposit box may be removed until the one-hundred-eighty-day requirement has been satisfied. The person given interim access to the safe-deposit box must immediately deliver all wills found and removed from the safe-deposit box to the clerk of the chancery court of the county in which
the decedent was domiciled at the time of the decedent’s death; failure to do so shall subject the person to criminal liability under Section 97-9-77.
The financial institution may make a complete copy of any document removed and delivered and place that copy, together with a copy of the inventory and supporting documentation noted with the date of delivery, in the safe-deposit box to remain there pending removal of the contents of the box as provided by this section or other law.
Reliance on affidavit. A financial institution that acts in reliance upon an affidavit without knowledge that the representations contained therein are incorrect is not liable to any person for so acting. A financial institution that does not have actual knowledge that the facts contained in the affidavit are incorrect may assume without inquiry the existence of the facts contained in the affidavit.
A financial institution shall not be held liable for any costs, expenses, damages or attorney’s fees arising from a grant of access to, or delivery of, the contents held in a safe-deposit box when the access or delivery is under the provisions of this section.
The Better Chancery Practice Blog 
So if the will is in the box your problem remains?
If the will is found in the box, it must then be filed with the clerk, per the statute. It does not say that it must be offered for probate. I assume the family would retain that choice.