In one of our previous articles (here), I told you that one of the first steps is to locate decedent’s last will and testament or trust. And, in that article, I indicated that one of the places you should look, if you can’t find those documents with their “important documents,” is in the decedent’s safe-deposit box. The purpose of this article is to understand how one goes about opening the safe-deposit box after death in Florida.

However, if you’re not a co-owner of the safe-deposit box, then you will not be able to gain access. Therefore, in order to gain access or open the decedent’s safe-deposit box, you are going to need to seek authorization or permission gain access into the safe-deposit box.

The process to do so is done through a petition to open the decedents safe deposit box. The main statute that governs this process is:

Florida statute Section 655.935 –

Search Procedure on Death of Lessee 

When examining this statute though, you’ll note some very interesting things. Take a look at the very first paragraph:

If satisfactory proof of the death of the lessee is presented, a lessor shall permit: (1) the person named in a court order for that purpose, or (2) if no order has been served upon the lessor, then the spouse, a parent, an adult descendant, or a person named as a personal representative in a copy of a purported will produced by such person, to open and examine the contents of a safe-deposit box leased or co-leased by a decedent, or any documents delivered by a decedent for safekeeping, in the presence of an officer of the lessor.

Based on the language of the first paragraph of the statute, it appears that the box can be opened without the necessity of a court order. Specifically this statute provides that upon satisfactory proof of death, any one of the following people can open and examine the contents:

• a spouse,
• parent,
• the adult descendant, or
• person named as the personal representative in a ”copy of the purported will”

While this appears to allow for entry into the safe-deposit box without court order, a number of issues can come up that hinder access, such as providing evidence of a marriage, producing birth records showing parentage or descendant, and so on.  It is my experience that sometimes financial institutions have policies that require a court order to avoid liability and to avoid possible fraud or misrepresentations of a family member.

Therefore, although it appears to be possible, people can and will run into road blocks when the safe deposit box is solely owned by the decedent.

As a result, the mechanism necessary to gain access or open the safe–deposit box is to seek a court order. This statute authorizes access by a person named in the court order.

I strongly recommend seeking the advice of an attorney at this point. You can never go wrong getting informed.

Often times, the less expensive route when looking at the overall picture may simply dictate to file a Florida probate and file a petition for formal administration. Under this procedure, a personal representative is appointed, who will automatically have the ability to gain access to the safe-deposit box.

More specifically, when a Florida personal representative is appointed and letters of administration are issued, Florida statute Section 655.936 – Delivery of safe-deposit box contents or property held in safekeeping to Personal Representative (link), governs the personal representative’s access to the safe-deposit box.

Opening The Safe-Deposit Box After Death In Florida:

Petition to Open Safe-Deposit Box

When a client comes to me for a free initial consultation, after considering number of factors, I may recommend and prepare a Petition to Open Safe-Deposit Box instead of preparing and filing a full formal probate.  Sometimes the petition is called a Petition to Search Safe-Deposit Box. This title may be more of an accurate reflection of what you are asking the court to do.

That being said the purpose inherently of the Petition to Open Safe-Deposit Box is to gain access and search the contents for some specific things. Among the allegations that are required to be plead in the Petition, the petitioner has to state substantially the following:

Petitioner is informed and believes that the decedent may have left in the safe

deposit box:

(a) A will or codicil of the decedent or a writing described in Florida Statutes Section 732.515 purporting to identify devises of tangible property.

(b) A deed to a burial plot.

(c) A writing giving burial instructions.

(d) Insurance policies on the life of the decedent.

Florida Rules of Probate Procedure 5.3425  governs the procedure of the Petition to Open Safe-Deposit Box.

It is important to note that the statute referenced above and the rule of procedure only allows for the opening, examining, making an inventory, and ultimately the delivery of only the list of potential items above.

Florida Statutes Section 655.935(1 – 3 ) governs how the contents are handled. Specifically, Florida Statutes Section 655.935(1-3) provides:

1. If requested by such person, the lessor shall remove and deliver only:
   • Any writing purporting to be a will of the decedent, to the court having probate jurisdiction in the county in which the financial institution is located.
   • Any writing purporting to be a deed to a burial plot or to give burial instructions, to the person making the request for a search.
   • Any document purporting to be an insurance policy on the life of the decedent, to the beneficiary named therein.

2. The officer of the lessor shall make a complete copy of any document removed and delivered pursuant to this section and place that copy, together with a memorandum of delivery identifying the name of the officer, the person to whom the document was delivered, the purported relationship of the person to whom the document was delivered, and the date of delivery, in the safe-deposit box leased or co-leased by the decedent.

3. The lessor may charge reasonable fees to cover costs incurred pursuant to this section.

As you can see, if the safe-deposit box is full of gold, is nothing that you will be able to do with it, at this point.  Handling of assets like gold, jewelry, or other precious items are handled later through the Florida probate proceedings.

I hope this article has provided you some insight into opening the safe-deposit box. So, if you are hitting roadblocks in the finding the last will and testament or the financial institution is denying you access to the safe-deposit box, feel free to Lynchard & Seely, PLLC a call to see if we can help you out. We look forward to hearing from you.

The Last Will and Testament provides instructions for what is to be done with the remains and assets. The first step is to locate the last will. When your loved one has passed, you may ask yourself, what am I supposed to do? Where do I start? These are very common and very appropriate questions. Remember, you are not alone.

While there are a number of things “to do,” we always start with the basic question – Where is the Last Will? Generally speaking, the entire purpose of a Last Will and Testament is to provide instructions for what is to be done with the remains of the decedent and what is to be done with their assets.

Locate the Last Will:

What to Look For

The first step is to determine the location of a few potential documents. You don’t need to legally understand the purpose of these documents at this point (of course, feel free to take a look at some of our other blog posts), but try to find any documents with the following titles:

• Last Will and Testament and Codicils (Amendments)
• Revocable or Irrevocable Trust and Trust Amendments

All of the documents above have testamentary aspects to them. Most of the time, you will be able to identify these documents because they will be titled accordingly. Generally speaking, you should be looking for “legal” looking documents that are typed or computer generated. Often times, the title of the document will be at the top of the first page or on a cover page.

As you might expect, the document will often read, “Last Will and Testament of _______.” If it is a Revocable Trust or Irrevocable Trust, it may read, “The John Doe Revocable Trust.” In the instance of a joint trust between husband and wife, it may read, “The John and Jane Doe Revocable Trust.”

Keep in mind that you need to be looking for the original document. If it is done by my office, I have my clients sign all originals in blue ink and all originals are printed on “off white” paper. All copies made by my office are black and white. I believe most attorneys operate this way, so be sure to look for the blue-inked documents.

Locate The Last Will:

Places You Should Look

I always suggest that you start by looking where the decedent all ways kept their “important documents.” This is the always the most likely place for estate planning documents to be found. Ask yourself, where did they keep copies of their tax returns, bank statements, or car titles? Here are a few suggested places to look:

1. In A File Cabinet, Important Document Drawer, Freezer, or Simply Sitting on a Desk

Be sure to look through the decedent’s office files and any locations where there are important documents. Those documents may be in a file cabinet, important document drawer, freezer, or simply sitting on a desk. I have had many estate planning clients call the location many things.

Nevertheless, try to remember where your loved one like to keep their “important documents.” The estate planning documents are likely in the same location.

I had one client call it “The Book,” because it was a very large three ring binder that sat on her office desk in her home. Strangely, it was not labeled nor had any identifying marks that would indicate what was inside. While the client was thoroughly prepared for the eventuality of her death, she did not think about labeling “The Book” or telling anyone where it was located.

The Family only found “The Book” because the decedent had told me about the existence of it and fortunately the family came to me after her passing. I will never forget that client and “The Book,” as I use that story in my estate planning advice to this day.

And, yes, I did write freezer above. Strangely, I have had a few clients that liked to keep some of their important documents in their freezer. I do not recommend this. That being said, people are going to do what they want to do. So, my advice to those clients who want to use their freezer for safe-keeping documents is that at a minimum, please put those documents inside of a zip-lock bag. As you can imagine, water, ice, ink, and paper do not mix well. I love my job. 😉

2. Safe Deposit Box

If you can’t find those documents in any of the places above, you should look is in their safe deposit box. Some clients plan well and make sure that there is someone that is also jointly titled or a signor on the box.

If there is someone else on the box, then you will likely be able to get access. If not, then you will need to file a petition to open safe deposit box with the Court to get permission. This process will be discussed in more detail in a future post. For now, just see if you can find the safe deposit box and see if you can gain access. If you cannot gain access, then you will need to seek the advice of an attorney.

3. Decedent’s Attorney

One final place you should look is at the decedent’s attorney’s office. As you go through the decedent’s important documents, emails, or even their checkbook, you may see correspondence from an attorney or payments to an attorney’s office. If so, call that attorney.

Some attorneys make it a part of their practice to hold on to the client’s original documents. Personally, I do not do this on a regular basis for my practice. Only in specific instances do I hold originals at my office for my clients.

Nevertheless, you should contact any attorneys you find to see if they are holding the documents. Even if they are not, they may have an idea where they are. See “The Book” story above.

I hope this helps you in some way to find the Last Will and Testament or Revocable Trust. As you will see, those documents can lay out what is to be done after their passing. Specifically, many clients include specific directions as to what is to be done with their remains and locations for burial. Nevertheless, if your loved one was a client of ours or if you have questions, please do not hesitate to contact us.