Where is the best place to safekeep your original estate planning documents? As Estate Planning attorneys we get this question all the time. Why in a safe, of course! But, which safe and where? Estate planning clients invest a great deal of time into planning for their future and that of their offspring, dependents, spouses, pets, property, and charities. Clients take the time to account for their property, arrange their affairs, and update their estate planning documents regularly. But after everything is in place, where should clients store their original documents to accomplish these goals?
Many people opt to lease a safe deposit box at their local bank. While this option likely provides maximum security for documents stowed inside, we do not recommend people store original estate planning documents in this fashion. Arizona Revised Statute § 6-1002 defines a landlord-tenant relationship to exist between the bank that owns a safe deposit box and the person who leases the box from the bank. Furthermore, the same statute declares the person who leases the safe deposit box maintains legal possession of the contents inside. Taking these two statements together, a bank opening a safe deposit box to people claiming to be the survivors of a decedent, and allowing those people to take property belonging to the decedent who leased the box, is – legally – the same as a landlord opening an apartment of a deceased tenant to people who claim to be the tenant’s children and allowing them to take away the tenant’s property inside.
A related law, Arizona Revised Statute § 6-1008, provides guidance for banks on how to proceed when a safe deposit box lessee dies. If someone approaches a bank claiming an interest in the contents of a deceased person’s safe deposit box, the statute allows, but does not require, a bank to open the safe deposit box and release estate planning documents and life insurance policies. However, the statute also requires a bank to retain all other contents in the box and only deliver them to a person legally entitled to assume possession. So while Arizona law allows a bank at its own discretion to release some limited estate planning and insurance documents, the weight of the law requires a bank to secure all other safe deposit box contents unless the person requesting them presents a court order granting permission.
Banks would expose themselves to unnecessary risk allowing even the possibility of releasing unauthorized safe deposit box contents without a court’s permission. Therefore, banks generally adopt the most conservative approach and require a decedent’s survivors to produce a court order before allowing anyone to inspect or remove contents inside a decedent’s leased safe deposit box. As a consequence, the limited provisions in Arizona law allowing a person to remove estate planning and insurance documents from a decedent’s safe deposit box tend not to work well in practice. So if a person who rented a safe deposit box dies, how do the survivors prove to a judge the estate planning documents grant them access to the box and ownership of the contents inside if the estate planning documents themselves are in the box? The answer to this question generally involves hiring an attorney and paying hundreds or thousands of dollars to obtain the court order.
Alternatively, the attorneys at Citadel Law Firm recommend clients store their original estate planning documents in a private safe in their home. Clients may even wish to keep a small safe at home that only holds their original estate planning documents and leave photocopies of the originals in a bank safe deposit box. This small home safe may be left unlocked or locked, providing survivors are notified of the combination or given a key. This arrangement allows trusted friends and relatives easy access to the original estate planning documents upon a person passing. After reading the estate planning documents, survivors can easily identify and notify successor trustees and personal representatives named by the deceased. Successor trustees and personal representatives should be able to access a decedent’s safe deposit box or property with the original estate planning documents. But, if not, the cost of obtaining a court order to access a safe deposit box, or bank account, or other property will be expensive and time consuming.
The attorneys at Citadel Law Firm are available not only to consult on estate planning and document drafting to achieve clients’ goals, but also to advise on strategies to ensure your desires and intentions are implemented after death. Everyone knows families that were torn apart after the death of a loved one. For families, often the management of a decedent’s affairs is even more emotionally taxing on everyone involved than the immediate sense of loss and grief. Keeping original estate planning documents readily available allows a decedent’s surviving loved ones to move beyond the loss and minimize risks of tensions within the family.
Thanks to our friends and contributors from Citadel Law Firm for their insight into estate planning.