A difficult situation that often falls between the cracks is how do you get into the safe deposit box after death. Here are my notes from my 2010 NBI seminar I gave on the probate process. Additionally, below that are the two most relevant code sections on safe deposit boxes. Contact me with questions. -John
- Examining the Safe Deposit Box: Identifying Important Documents
“My loved one had a will… I just know it but the bank won’t let me into the safe deposit box… what do I do?”
1. PC 331 – Provides for easy access to the safe deposit box if you can establish death and you have the key to the safe deposit box. With a bank employee present, may inventory the safe deposit box, remove original estate planning documents, and leave photocopies. Must file originals with Court and give copies to named fiduciary. Great way to find out if there is a will!
2. PC 13100 – PC 331 won’t work if you don’t have the key… so then what? You can do a PC 13100 declaration and get the safe deposit box drilled if you comply with the requirements of PC 13100 (40 days after death, no probate, etc…).
3. Using Letters – If you do not have the key but still need access to the safe deposit box you should go to Court for Letters. If you believe there may be a will then seek Letters of Special Administration limited to the purpose of drilling the safe deposit box. If you do not believe there is a will then just wait until Letters of Administration have issued and then drill, and empty, the safe deposit box.
PRACTICE POINTER: When you send your client to the bank send them with a copy of PC 331. Banks are friendlier when the person shows up with all the documents required and a copy of the probate code which shows they have complied. Also, give your client strict instructions to not leave the bank but instead keep asking for a higher bank official until, eventually, one agrees to follow the law!
CALIFORNIA CODES PROBATE CODE SECTION 330-331
330. (a) Except as provided in subdivision (b), a public
administrator, government official, law enforcement agency, the
hospital or institution in which a decedent died, or the decedent’s
employer, may, without the need to wait 40 days after death, deliver
the tangible personal property of the decedent in its possession,
including keys to the decedent’s residence, to the decedent’s
surviving spouse, relative, or conservator or guardian of the estate
acting in that capacity at the time of death.
(b) A person shall not deliver property pursuant to this section
if the person knows or has reason to believe that there is a dispute
over the right to possession of the property.
(c) A person that delivers property pursuant to this section shall
require reasonable proof of the status and identity of the person to
whom the property is delivered, and may rely on any document
described in subdivision (d) of Section 13104 as proof of identity.
(d) A person that delivers property pursuant to this section
shall, for a period of three years after the date of delivery of the
property, keep a record of the property delivered and the status and
identity of the person to whom the property is delivered.
(e) Delivery of property pursuant to this section does not
determine ownership of the property or confer any greater rights in
the property than the recipient would otherwise have and does not
preclude later proceedings for administration of the decedent’s
estate. If proceedings for administration of the decedent’s estate
are commenced, the person holding the property shall deliver it to
the personal representative on request by the personal
(f) A person that delivers property pursuant to this section is
not liable for loss or damage to the property caused by the person to
whom the property is delivered.
331. (a) This section applies only to a safe deposit box in a
financial institution held by the decedent in the decedent’s sole
name, or held by the decedent and others where all are deceased.
Nothing in this section affects the rights of a surviving coholder.
(b) A person who has a key to the safe deposit box may, before
letters have been issued, obtain access to the safe deposit box only
for the purposes specified in this section by providing the financial
institution with both of the following:
(1) Proof of the decedent’s death. Proof shall be provided by a
certified copy of the decedent’s death certificate or by a written
statement of death from the coroner, treating physician, or hospital
or institution where the decedent died.
(2) Reasonable proof of the identity of the person seeking access.
Reasonable proof of identity is provided for the purpose of this
paragraph if the requirements of Section 13104 are satisfied.
(c) The financial institution has no duty to inquire into the
truth of any statement, declaration, certificate, affidavit, or
document offered as proof of the decedent’s death or proof of
identity of the person seeking access.
(d) When the person seeking access has satisfied the requirements
of subdivision (b), the financial institution shall do all of the
(1) Keep a record of the identity of the person.
(2) Permit the person to open the safe deposit box under the
supervision of an officer or employee of the financial institution,
and to make an inventory of its contents.
(3) Make a photocopy of all wills and trust instruments removed
from the safe deposit box, and keep the photocopy in the safe deposit
box until the contents of the box are removed by the personal
representative of the estate or other legally authorized person. The
financial institution may charge the person given access a reasonable
fee for photocopying.
(4) Permit the person given access to remove instructions for the
disposition of the decedent’s remains, and, after a photocopy is
made, to remove the wills and trust instruments.
(e) The person given access shall deliver all wills found in the
safe deposit box to the clerk of the superior court and mail or
deliver a copy to the person named in the will as executor or
beneficiary as provided in Section 8200.
(f) Except as provided in subdivision (d), the person given access
shall not remove any of the contents of the decedent’s safe deposit