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Estate and Elder Law

Opening the Safe Deposit Box

By  Peter K. Kelly

Of Counsel, Ruskin Moscou Faltischek 

Often shortly after a decedent’s death, family members need to search the decedent’s safe deposit box for the original Will, a deed to a burial plot, a policy of life insurance or papers bearing upon his or her desire as to the disposal of their remains.  The Surrogate’s Court Procedure Act Section 2003 provides an expedited ex parte procedure for “a person interested” in his estate to obtain an Order to search this safe deposit box for any or all of the above documents.  This statute contemplates such an ex parte proceeding before the Court has issued letters to a fiduciary.  Implicit in the statute is that executors and administrators, by the power of the letters issued to them, have access to a decedent’s safe deposit box.  (see, Turano, McKinney’s Practice Commentary to SCPA Section 2003 at 265).  In this expedited pre-appointment of a fiduciary process, the Court authorizes the petitioner to examine and inventory the contents of the box in the presence of a bank official.  If a Will is found, it is mailed to the Surrogate’s Court, an insurance policy is sent to the named beneficiary and a burial plot deed is disposed of at the Surrogate’s Court direction.  Otherwise, the contents of the box are inventoried and no other property is removed until a fiduciary is appointed.           

However, there have been situations where the depository bank has nevertheless been reluctant to permit the opening of a safe deposit box by a fiduciary without a specific order of the Court.  In particular, where a fiduciary presents his or her letters, the bank should permit the box to be opened by the fiduciary and the contents removed. 

In the circumstances where the Court has issued preliminary letters testamentary (SCPA 1412), temporary letters of administration (SCPA 903) or any other letters where the appointing Court sets forth specific limitation or restrictions on the letters issued (SCPA 702), the banks can sometimes be unwilling to permit such fiduciaries to open the box without a specific order. 

In a recent case decided by the Bronx Surrogate (Matter of Hamilton, N.Y.L.J., Jan. 29, 2014, at 22, col. 6 (Sur. Ct. Bronx County), Capital One denied an administrator access to a decedent’s safe deposit box.  Letters of Administration without any limitation were issued to the administrator pursuant to a decree of the Court.  The “Certificate of Appointment of the Administrator”, an official form issued by the Court bore a notation “Limitations: these letters authorize the collection of a total of $38,000.  The collection of in excess of that amount must be authorized by further order of the Surrogate.”  The limitation on the Certificate of Appointment was apparently issued because the administration petition listed assets of $38,000.  When the administrator appeared with her counsel, Capital One’s branch manager, after consultation with her legal department, refused the administrator access to the box. 

The administrator commenced a proceeding by order to show cause seeking an order compelling the respondent bank to give the administrator access without further delay for the purpose of obtaining an inventory and removing the contents and awarding the administrator legal fees and costs incurred in commencing the proceeding against Capital One. 

The Surrogate took the opportunity to clarify the administrator’s authority with respect to examining and retrieving the safe deposit’s contents.  The Court emphasized that a fiduciary stands in the shoes of a decedent and under EPTL 11-1.1(b)(5), a fiduciary has the authority to take possession of any estate property including a safe deposit box.  The Court held that Capital One should permit the administrator access to the box to identify the contents and withdraw property “not exceeding the value of the limitations contained in her letters.”  The Court also declined to issue another court order to permit the administrator access to the safe deposit box, as unnecessary stating quite simply, the decree granting letters already did so.  Conspicuously absent was a ruling on the application for costs and attorneys fees by the administrator. 

While the Surrogates decision is helpful to the bar in clarifying the power of a fiduciary to have access to a decedent’s safe deposit box, it falls short as a deterrent to the arbitrary denial of access by the banks.

Peter K. Kelly serves as Of Counsel to Ruskin Moscou Faltischek, where is a member of the Trusts & Estates Department. Mr. Kelly’s practice focuses on estate and trust litigation, estate administration and estate planning.

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