Philip W. Boyko Trusts and Estates Law Blog on Lawyers.com

A family member unexpectedly passes away and you are the executor named in the decedent's Will, at least that's what you remember from a long-ago conversation you had with the decedent.  Problem is that the Will is in a safe deposit box owned by the decedent. What to do?

It's no secret that Wills and other legal documents are many times stored in a safe deposit box.  But how do you access that box now, before your appointment as the executor of the decedent's estate? Indeed, you will need to file the original of the Will with the application filed with the probate court. But you can't get appointed until you get your hands on the original of the Will?  Catch -22?  Not hardly as there are procedures available in Texas and most states by which you can access the box before the appointment of the personal representative of the estate.

The Texas Probate Code, Section 36D, allows financial institutions to permit the following individuals to examine the box for documents following the death of the owner of the box:

• the decedent's surviving spouse;
• the decedent's parents;
• an adult decendent of the decedent; and
• a person named as executor in a copy of the Will that appears to be valid.

If the will is found in the box, the institution or person may deliver it to the clerk of the court, or the person named as executor in the Will.

There is another method of accessing the contents of the box.  An application can be filed with a probate court seeking an order authorizing the examination of the decedent's safe deposit box (Texas Probate Code Section 36B).  Under this provision, almost any person may file the application, which must include:

• decedent's name, residence address, date and place of death;
• the applicant's name and address;
• names of the financial institutions where the safe deposit box(es) may be located; and
• a general description of the documents that are sought to be located.

If you find yourself in this situation, seek advice from your attorney.  At a minimum, contact the clerk of the probate court. Some courts have a standard form that can be completed and filed, in some instances, without the assistance of an attorney.

Nothing in this post should be considered legal advice. Let's face it, chances are good that we don't know each other. My aim is simple - to provide the reader with some useful, but general, information about the topic. You should not rely on any information in this post without some assurance that the material is still current and applicable at the time it is read. If you want a legal opinion that has teeth, consult your personal lawyer about your particular circumstances. If you don't have a lawyer and like what you see here, perhaps you should contact my law office to determine if I might be a good fit for you. To do so, simply click on my name above and you will be directed to my website, or you can reach me by telephone at (713) 626-2221 (messages left during non-business hours will be returned the next business day).  When responding, please refer to this Blog No. 45.