Legalities

Legalities, a weekly column that appears in the Help section of the Southern Illinoisan, is a free service of the Self Help Legal Center. You can visit the Southern Illinoisan website at: http://www.southernillinoisan.com/

Q: My aunt passed away and no one has a copy of her will. I think that her will is in her safety deposit box at a bank in her hometown, but I am not sure. I called the bank and a representative said that they couldn't open her box because I am not on a "signature card" that they have for her box. She told me that I have to hire an attorney if I wanted to have the box opened. Is she right?

A: Probably not, but it depends on a couple of factors.

In Illinois, there is a law called the Safety Deposit Box Opening Act. Under this Act, a bank can open a safety deposit box of someone who has passed away under certain conditions.

First, you must provide the bank with satisfactory proof of the death of the person who was leasing the safety deposit box or, if two or more people were leasing the box, the last surviving person.

Second, you must provide an affidavit to the bank that states that you are interested in the filing of the decedent's will or in the arrangements for his/her burial; you believe the box may contain the will or burial documents of the decedent; and you fall under the definition of what the Act calls an "interested person."

An "interested person" is defined as someone who is either:

a) a person who had the right of access to the box before the decedent's death;

b) named as an executor in a purported will of the decedent; or

c) the decedent's spouse, adult descendent, parent, brother or sister. If none of these people are available, the bank has the discretion to open the box for anyone it feels may have a legitimate interest in the filing of the decedent's will or in the arrangements for his/her burial.

So, if you have a good faith belief that the box contains the will of your aunt and you provide an affidavit to the bank stating that your aunt's spouse, children, parents, or siblings are not available, the bank could open the box for you.

You should know that under the Act, the bank cannot open the box if they have received a court order telling it not to open the box and it doesn't have to open the box if they have received an objection to opening the box from someone else.

Finally, keep in mind that even if the bank agrees to open your aunt's safety deposit box, and even if the bank finds a will in the box, you still won't get the will. Under the Act, the bank is supposed to remove any document that appears to be a will and deliver it to the clerk of the circuit court for the county in which the decedent resided immediately prior to his or her death. Burial documents, however, can be given to the person who requested that the box be opened.