Dear Mr. Di Costanzo: Can my spouse access our jointly owned safe deposit box after my death?

It is common practice in New York for banks to “seal” a safe deposit box upon the death of an owner.  Surprisingly, this practice applies even in situations where there are joint owners.  Many people who own safe deposit boxes as joint owners, for instance a husband and wife, mistakenly believe that the surviving owner has free access to the contents of the box after the death of the first owner.  This is not the case in New York.  Unlike joint bank accounts, there is no right of survivorship feature with safe deposit boxes.

New York banking law provides that access to a safe deposit box must be granted to an Executor, Administrator, Trustee or Guardian.  This could be a cumbersome process for those who have no reason to probate or administer an estate other than to access a safe deposit box.

Making matters more complicated, the Last Will and Testament of the decedent may be in the safe deposit box.  To probate or administer the decedent’s estate, the original must be presented to the Surrogate’s Court.  In this case, one must first file a petition with the Surrogate’s Court asking for permission to inventory the contents of the safe deposit box, usually under the supervision of a bank officer.  If the Last Will and Testament is found, it must be delivered to the Court by the bank.  Only then can the probate or administration be commenced.

Clearly, safe deposit boxes can become a hassle after the death of an owner.  In fact, the use of safe deposit boxes is becoming a thing of the past.  A better practice is to store your valuables at home in a safe or lock box.  For those who continue to use a safe deposit box, we do not recommend keeping your Last Will and Testament in that box.

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