By:  James M. Bright

Attorney at Law 

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

            One problem that may arise after the death of a loved one is how to gain access to the decedent’s life insurance policies or will if they were kept in a safe deposit box.

            There are two basic approaches to accessing a decedent’s safe deposit box which are authorized by the Texas Probate Code.

            Without a court order:

            If the institution (bank) which has leased the safe deposit box of the decedent is willing to work with you, §36D of the Texas Probate Code authorizes an examination of a decedent’s safe deposit box without a court order.

            The person or bank or other institution which possesses or controls a document delivered to them by the decedent for safekeeping or who leases a safe deposit box to a decedent may permit certain persons to examine the document or the contents of the safe deposit box.

            The persons who may be authorized without a court order are the surviving spouse of the decedent, a surviving parent of the decedent, a descendant of the decedent who is at least eighteen (18) years old or a person named as executor of the decedent’s estate in a copy of a document that that person possesses which appears to be a will of the decedent.  V.A.T.S Probate Code, §36D.

            The examination should be conducted in the presence of a person who possesses or controls the document or who leases the safe deposit box.  In the case of a bank safe deposit box, the examination should be conducted in the presence of one of the bank’s officers or the officer’s designated representative.

            If the bank or other entity that leased the safe deposit box to the deceased person cooperates in permitting examination, what happens next?

            A document found in the safe deposit box which appears to be decedent’s will may be delivered to the clerk of the court that has probate jurisdiction in the county where the decedent resided or to the person named in the document as the executor of the decedent’s estate.  The bank should make a copy of any document appearing to be a will and should retain that copy for four years.

            A document which appears to be a burial plot in which the decedent is to be buried or which appears to give burial information may be turned over to the beneficiary named in the policy.

            Before any of the documents referenced may be delivered by the bank or other entity holding the documents, they must be requested by the person making the examination, and the person making the examination must issue a receipt for the document(s).  V.A.T.S., Probate Code §36E(a-c).

            With a court order:

            If the bank or other institution controlling the safe deposit box will not voluntarily offer inspection under the guidelines outlined above, then what are the steps involved in obtaining a court order permitting examination?  This question is answered in V.A.T.S., Probate Code §36B.

            A petition should be filed with the judge of the court having probate jurisdiction of the decedent’s estate.  (It is probable that you will require the services of an attorney to perform this task on your behalf.)

            The judge may order a person or entity to permit a representative named in the court’s order to examine a decedent’s documents or safe deposit box if, at a hearing before the court, it has been shown to the judge that:

1.         The person so ordered is in possession of or controls documents sought or that they leased the safe deposit box to the decedent; and

2.         The documents or safe deposit box may contain a will of the decedent, burial policies or life insurance polices.

            After a court hearing and declaration by the court, the representative named in the court’s order shall examine the decedent’s documents or safe deposit box in the presence of the judge or an agent of the judge and an officer of the bank or an agent of an officer of the bank.

            The judge may order the representative appointed by the court to take charge of the will, deed to burial plot or life insurance policies and deliver them to the proper persons to review each.

            Obviously, the quickest and easiest manner to examine a safe deposit box is with the lawful cooperation of the bank or other entity that leased the box to the decedent.

            This attempt at cooperation should always be tried first and a court order sought only when efforts to achieve cooperation have failed.

            Depending upon the exact relationship and the persons involved, it may be advisable to avoid the entire procedure by giving trusted persons permission to access the safe deposit box long before the death of the decedent.  Typically, this can be accomplished by adding the name(s) of trusted person(s) to the bank’s applicable records and advising such trusted persons that your will, insurance policies, burial policies, etc., may be found in the safe deposit box.

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street

in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see-