I would feel better about placing my original estate planning documents in a safe deposit box. Will this be a problem?

If you’re the sole, living name on this box, it’s not a good idea. Although many states have put policies in place so that a safe deposit box can be opened to obtain estate planning documents like a will or burial instructions, it’s not a quick and easy process. Especially considering no one can obtain immediate access to your assets if you die or become disabled.

Unfortunately, these state policies also set up certain conditions where banks can refuse an individual’s request. For instance, under the Illinois Safety Deposit Box Opening Act, a bank can deny access if the box has been previously opened under 755 ILCS 15/1; if the bank receives or believes it may receive an objection; or if the key or combination isn’t available. These obstructions will prolong the time and effort needed to obtain the documents since they will have to be accessed by other means . . . usually through a court proceeding.

Of course, access isn’t a problem if your spouse is a joint owner. A problem would only occur if one spouse became incapacitated or died and a new co-owner was never named. However, always consider that a new joint owner will also have full access to the contents of the box.

Why can’t my agent for Durable Power of Attorney for Finance access my box if I give them authority to do so?

Due to liability issues, financial institutions are taking stricter precautions about who can access another person’s assets with the bank, even with a power of attorney. Because policies differ from bank to bank and state to state regarding safe deposit boxes, it’s important to ask your bank about its specific procedures so there will be no surprises.

How about titling the safe deposit box in the name of my trust?

This seems like a reasonable solution to ensure a successor trustee will have access to your safe deposit box. Unfortunately, in our current litigious culture, most banks are wary about allowing safe boxes to be titled this way. For them, it could be a liability if clients assume anything placed in the box is also placed in the trust. Banks want no involvement in potential arguments among heirs about the contents of a box.

It’s possible some banks may make an exception if you lean into them or get an attorney involved. However, it appears most would rather not, so be aware that permission may be difficult to obtain.

Are the originals really needed? Can’t I just make copies available?

The original always beats a copy. While it’s possible to use copies of estate planning documents in some circumstances, it’s wise to always have your original available to those who need it. A copy will never have the same legal effect or force since you could run into some situations where its validity is questioned.

What’s the best solution for storing my estate planning documents?

It’s wise to only store those items in a safe deposit box that are not needed upon your incapacitation or death. Because banks and states differ in policies, there is no streamlined way to quickly access someone else’s box to obtain important documents. A better alternative would be to store them in a secure home safe – fireproof, waterproof and bolted to the floor or wall studs.

Of course, it’s important that responsible parties also know the combination to this safe. If not, you’ll just be exchanging one set of problems for another . . . or they’ll just need to find a good locksmith.

Do you have an estate planning question for one of our attorneys that’s on your mind? Shoot us an email at admin@trust-lawgroup.com and we’ll try to answer it.