A safe deposit box seems like the perfectly logical place to store a will and other estate planning documents. They are probably the most important documents we will ever have, so shouldn’t they be kept in the safest place?
But is it a safety deposit box the best place? Or should you keep it in a fireproof safe in your home? With your lawyer? The court? Or somewhere else altogether?
[Note: This post was written while I was a practicing attorney running a diverse solo law practice, and it is one of a small number of “legacy posts” that I have retained on the site. When published, this was one of my most popular posts. Since April 2015, I have been working as an executive coach and writer, and I am not currently available for legal engagements.]
Although I mention it again below, this bears stating here at the outset and repeating: Whatever option you choose, make sure your executor knows what you did!
Safe Deposit Box
Although clients often instinctively want to put wills in a safe deposit box, many estate planning lawyers suggest not to keep a will or other important estate planning paperwork there.
The problem arises with the fact that many states seal a safe deposit box when informed of the death of the owner, and a court order must be issued to request that the box be opened to search for the will. Although probate courts will generally issue this order “immediately”, in practice there is still a delay until the request is made to the court (or the court acts on its own) and the order is actually granted.
Documents that are generally allowed to be released include the will, any deed to a cemetery or burial plot and any life insurance policy for the named beneficiary. I mention below (by way of example) some basic information about two states, Connecticut and New York, although more complete and updated information may be applicable if and when it is needed by your heirs. Following this information is a discussion of other options for keeping your estate planning documents, such as with an attorney, with the court or in a fireproof safe in your home.
In Connecticut, there is a standard form to request that a safe deposit box be opened after the death of an individual (click here), which should be submitted to the decedent’s corresponding court of probate. The form may be submitted by a next of kin, spouse, or any person showing a sufficient interest in the presence of a will to obtain any will or cemetery deed in the safe deposit box. The court may also issue an order ex parte. In all cases, an officer of the bank must oversee the process and report back to the court.
Surrogate Courts in New York have different forms depending on which court is issuing the order. (New York tends to be more complicated in many legal matters, unfortunately.) Here’s the form for Queens County, for example (click here). To its credit, New York has made it easier with a do-it-yourself program, called the Surrogate’s Court Safe Deposit Box Petition Program, to walk people through how to make the request (attached here). Among other documents, you will need to obtain a copy of the death certificate before making the request.
In addition to the above, a bank may have its own procedures, such as requiring Letters of Appointment, Letters Testamentary or Letters of Administration (each being a letter allowing an executor or administrator to act on behalf of the decedent’s estate) before allowing access to the safe deposit box.
As you can see, there administrative hassles involved (those discussed here and others) with storing a will or other estate planning documents in a safe deposit box. That said, for individuals who do not have another safe place to store a will or prefer the safety of a safety deposit box, it may be the best choice.
Another option is to keep a will with the attorney who drafted it. Again, this may or may not prove as easy as it sounds. For example, we had wills drafted by an attorney shortly after the birth of my first child. After five years the lawyer wrote to us stating that the originals would be sent back to us if we did not inform her that we wanted her to keep them. (But I thought she was going to keep them until we died?)
In addition, offices may move or close, and if you do not keep careful records, it may be difficult for your heirs to locate an original will when the time comes.
The Internet does help in this regard, but it is not foolproof. I represented a client recently who had drafted her first will many years earlier and wanted to update it, changing her executor and adding grandchildren as beneficiaries. We attempted to locate the attorney who had drafted the original will, even contacting a lawyer who had previously shared office space with him and sending out email blasts to estate planning attorneys who might have known him. The man was nowhere to be found. He had either retired or passed away himself. Needless to say, if my client had died without updating her will, her heirs would have only had a copy to submit to the court (that is more open to being contested and requires additional proof to be probated), not the original.
Finally, if the lawyer is not responsive for whatever reason, executors or others seeking to obtain estate planning documents from the attorney may also need to obtain a court order to compel production.
Again, a lawyer’s office may be the best place to store a will, depending on your circumstances. However, you should weigh all factors for and against before making a decision.
You can file your will with the court in many states, which is also a safe option, but this means that your will becomes an official document, not a private one. If you decide to change the terms of your will, you cannot get it back, so beneficiaries and former beneficiaries can see how their respective inheritances have changed (or been removed) during successive revisions. On the contrary, if a will is a private document, you can destroy the original and all copies, and would-be heirs who have fallen out of favor are none the wiser.
In addition, if you move out of the jurisdiction of the court, out of state or even out of the country, your court-filed will does not come with you. There should only be one original of your will (an inviolate rule, barring very specific cases of different wills covering different assets, such as an international circumstance). That means if you drafted a will while living in Westchester County, New York, and filed it with the Surrogate’s Court in White Plains, your executor and beneficiaries would need to obtain it from that court, even if you or they have since moved to Phoenix, Paris or beyond.
Fireproof Safe in Your Home
It may be, after considering other options, that you decide to keep your last will and testament in a fireproof safe in your home. This is often a good option, especially if you have a safe that cannot be remove from the premises by anyone seeking to tote off valuables. In that case, I would recommend keeping a copy of the will in a safe deposit box (clearly marked COPY, with instructions on where to find the original), in the unfortunate circumstance that the original is lost. Be careful not to create too many copies, since you may later revise important provisions of your will and do not want multiple prior copies floating around that a beneficiary with a reduced share tries to “prove” is your correct and valid last will and testament. This can happen even among otherwise friendly parties, such as children and grandchildren. Do your heirs a favor, and keep everything clean to mitigate potential conflicts.
According to the rumor mill, there may still be a few folks who actually store important documents in the freezer. I have never met anyone who did – maybe it’s a poor man’s safe? – but I certainly don’t suggest having a last will and testament shoved behind the frozen peas. Not only does it sound a bit too Sopranos to me (and James Gandolfini himself left a mess for his heirs), but the bag it’s stored in better be really, super waterproof in the event of a power failure.
Let Them Know What You Did
Regardless of the option you choose for storing your will, make sure that your executor(s) know what you did. The best estate plans only work if the right people know how to follow them and where to locate essential documents when the time comes.
None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation.