Robert’s Blog

The other day, a client tried to assure me that he knew better than to put his newly signed Last Will and Testament into a safe deposit box at his bank. “When someone dies, the state freezes all bank accounts and safe deposit boxes”, he said. I smiled because I hear this statement frequently.

Fortunately, New Jersey does not freeze safe deposit boxes at death and the executor has immediate access to all safe deposit boxes.  In addition, half of all bank accounts can be withdrawn before any tax return is filed.  New Jersey has one of the most easy probate processes in the country.  (As a side bar: Our state government officials seem to have forgotten this potential infliction of turmoil and the opportunity of tax revenues because the law has remained unchanged since the 1970’s).

The problem with safe deposit boxes occurs when you are still alive and someone needs to get into it. For example: Today, you sign a Living Will or Power of Attorney and place it in your safe deposit box. The next week, you have to go to the hospital and you are asked (as required by law of the hospital), “Do you have a living will?”  “Well, yes!”, you say.  “It’s at the bank. I will have my son go and get it.”

Dutifully, your son goes to the bank and is turned away! Why?  Because the safe deposit box is in your name and you are still alive. No one is permitted access except you. Therefore, if using a safe deposit box, authorize someone else to have access to the box, as well.

Additionally, whether you use a safe deposit box or not, please tell someone outside your home where your Last Will and other important documents can be found. People have a tendency to tuck away these documents in an obscure, safe place. Consequently, when the documents are needed, no one can find them!

I once had a family come to me because their mother had died and the son was sure a will existed; however, he could not find it. Unfortunately, this family was a very angry family. Before long, the siblings were firing nasty emails to each other. One even accused the brother of deliberately hiding the will to frustrate his ability to get his retirement money, (this raises an issue for a future blog discussion). Court papers were being drafted, (and the nuclear missile launches were being readied). Then the next door neighbor and friend of the deceased mother came forward and said,  “Oh, I have the will.”  We were three months into preparing for defense proceedings when the neighbor remembered having her friend’s will.

The moral of the story is to remember that these documents were prepared for a purpose. Think of the people you have named in your documents and how not to make the work you requested of them to be frustrating and difficult.

Bob’s Blog Disclaimer: This Blog is intended to be used for discussion of the practical effect of the law in our everyday lives. Questions about why the law is written a certain way, why lawyers do the things they do, the legal process, and the like, are encouraged. Although I practice Elder Law, your questions need not be about elder care. Please: no names, no personal attacks, and no requests for legal advice.