The time soon after the death of a family member or friend is usually confusing and traumatic with family and friends often required to perform quickly such mundane but vital acts as planning the funeral, paying bills, caring for pets of the Decedent and the myriad details of daily life. Sooner or later the family realizes that they must gain access to such important documents as the Will and Trust that may have been written by the Decedent and often that document is located in a Safe Deposit Box. How does one gain access to such a box after the person who owned it has died?
That procedure has been codified in California and is the subject of this article. The reader should first review our article on Probate of Estates before reading further.
Basic Law:
Under California Probate Code § 331 access to decedent's safe deposit box is allowed only as detailed below:
1. This above section applies only to a safe deposit box in a financial institution held by the decedent in the decedent's sole name, or held by the decedent and others where all are deceased. Nothing in this section affects the rights of a surviving co holder. Thus, if one’s name is on the box, one can achieve access in the same manner as if the Decedent had not died.
Assuming the box is in the name of the Decedent, however,
2. A person who has a key to the safe deposit box may, before letters testamentary have been issued, obtain access to the safe deposit boxonly for the purposes specified in Probate Code Section 334 by providing the financial institution with both of the following:
(1) Proof of the decedent's death. Proof shall be provided by a certified copy of the decedent's death certificate or by a written statement of death from the coroner, treating physician, or hospital or institution where the decedent died.
(2) Reasonable proof of the identity of the person seeking access. Reasonable proof of identity is provided for the purpose of this paragraph if the requirements of Section 13104 are satisfied.
3. The financial institution has no duty to inquire into the truth of any statement, declaration, certificate, affidavit, or document offered as proof of the decedent's death or proof of identity of the person seeking access.
4. When the person seeking access has satisfied the requirements above, the financial institution shall do all of the following:
(1) Keep a record of the identity of the person.
(2) Permit the person to open the safe deposit box under the supervision of an officer or employee of the financial institution, and to make an inventory of its contents.
(3) Make a photocopy of all wills and trust instruments removed from the safe deposit box, and keep the photocopy in the safe deposit box until the contents of the box are removed by the personal representative of the estate or other legally authorized person. The financial institution may charge the person given access a reasonable fee for photocopying.
(4) Permit the person given access to remove instructions for the disposition of the decedent's remains, and, after a photocopy is made, to remove the wills and trust instruments.
5. The person given access shall deliver all wills found in the safe deposit box to the clerk of the superior court and mail or deliver a copy to the person named in the will as executor or beneficiary as provided in Section 8200.
6. Except as provided in subdivision (d), the person given access shall not remove any of the contents of the decedent's safe deposit box.
7. Note that the above only applies to a person who has a key to the safe deposit box. If the person seeking access does not have a key to the safe deposit box and is not the public administrator, the person must obtain letters testamentary from the court to gain access to the box.
See our article on Probate of Estates and Wills and Trusts as to the procedure for obtaining Letters Testamentary.