Opening The Safe-Deposit Box After Death In Florida

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.