Sandra Reed’s Life Care Planning: You’ve made a will — where should you put it?

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your life planning questions.

The importance of making a will cannot be overestimated, but neither can the necessity to preserve the will and have it readily accessible to loved ones upon its maker’s death. What should be done with the original will once it is properly executed?

A will should be placed where it is safe from loss, whether from misplacement, fraudulent intention by an aggrieved party or natural disaster such as tornado, flood or fire.

Unlike other important documents, wills should never be signed in duplicate. There should be only one original will.  Many lawyers customarily advise the client not to make copies of the executed will since the original will must be filed for probate, except under exceptional circumstances, and problems often arise from having duplicates.

If a copy of the original is made, the testator (the person whose will it is) should write on it a notation as to where the original is located.

Safe Deposit Boxes

A safe deposit box is one of the most secure places to store a will and other estate planning documents.  Often lawyers will recommend that their clients place the original of their will in a safe deposit box.    These boxes are made available by banks for a modest annual fee.  For instance, First Financial Bank currently charges $15 (fee to increase slightly in March) for its smallest box, which is sufficient to hold a will.

Even though the safe deposit box may be the place of choice for storing the will, it is vital to authorize someone other than the testator to have access to it absent the presence of the testator.  The procedures required to retrieve the will from the box when the testator dies if no such designation has been made may be costly. Therefore, the best approach is to grant access authority without the presence of the testator through whatever process the bank or other financial institution maintaining the safe deposit box has established.

If the owner of the safe deposit box has not authorized someone to enter it without his or her presence, the Texas Probate Code does authorize a process the financial institution may follow to allow access to retrieve the will.  The financial institution may permit these people to examine the contents of a safe deposit box: (1) the spouse of the decedent; (2) a parent of the decedent; (3) a descendant who is at least 18 years of age; or (4) a person named as executor of the decedent’s estate in a document that appears to be the Last Will and Testament of the Decedent. Obviously, if the purpose of the examination of the safe deposit box is to locate the will, number (4) may not be of assistance.

The Probate Code requires that the employee of the bank allowing access to the safe deposit box be present when the contents are reviewed.  If the person examining the box requests it and issues a receipt for the document, this employee may deliver a will found in the box to the proper court clerk in the county where the decedent resided or to the executor named in the will. 

If the bank will not grant access to the safe deposit box, the Probate Code allows for application to the court with jurisdiction over probate matters to issue an order granting permission to access the box. The court will appoint a representative to examine the safe deposit box if evidence has been presented it may contain: (1) the decedent’s will; (2) a deed to the decedent’s burial plot; or (3) an insurance policy in which decedent’s name payable to a beneficiary or beneficiaries named in the policy. This representative appointed by the court may then examine the contents of the safe deposit box in the presence of the judge (or the agent of the judge) ordering the examination.

Should the will, a burial plot deed or an insurance policy be found in the box, the court may order the bank employee to permit the court-appointed representative to take possession of the document(s).  The Probate Code requires the court representative to deliver a will found in the box to the court and to obtain a receipt from the clerk for its delivery.  The court order should specify to whom the representative must deliver any burial plot deed and the representative must comply by making delivery to that designated person.  The representative must deliver any insurance policy found to the beneficiary or beneficiaries named.

The court’s order does not allow any other contents of the box to be removed by this representative.

Keys to the Kingdom:  Safeguard Safe Deposit Keys

Typically, banks will issue two keys to the owner of a safe deposit box. These are the only keys to the box.  It is not necessary that the owner of the box give a key to the person to whom he or she has granted access, but that person’s name will have to be listed on bank documents as having authority to enter the box. The person authorized to enter without the presence of the owner must have at least one of the keys after the owner dies to get into the safe deposit box. The bank will likely require that both keys be returned at the time the box is closed out or a fee will be charged for the missing key.

The bank will have a master key that can be used in conjunction with the owner’s key to open the safe deposit box. If neither key is available, the safe deposit box will have to be drilled to access its contents, a procedure for which a substantial fee will be charged.

Sandra W. Reed is an attorney practicing in Glen Rose. She is Of Counsel with the Elder Law firm of Katten & Benson in Fort Worth.  If you have any questions, you may contact her by phone at 254-797-0211 or by email at swreed2@yahoo.com

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