Hoosier Banker 27 Brett J. Ashton Partner Krieg DeVault LLP Submit Compliance Connection questions to Joshua A. Myers, Indiana Bankers Association: jmyers@indianabankers.org. Krieg DeVault LLP is a Diamond Associate Member of the Indiana Bankers Association. Article author COMPLIANCE CONNECTION Question: We have a safe deposit box held by two family members as joint tenants. One of the owners recently passed away and, within a week of his passing, an individual walked into our branch requesting access to the box as the “personal representative” of the deceased. The surviving joint tenant does not want anyone else to have access to the box, but the personal representative has threatened to sue the bank if we don’t provide access. Do we have to give the personal representative access to the safe deposit box? Answer: Absent a court order providing the personal representative with a priority right to the contents of the box, you do not have to give the personal representative access to the safe deposit box. The personal representative appears to be confusing or, worse yet, overstating the authority of the title. Indiana law provides, “Every personal representative shall have a right to take, and shall take, possession of all the real and personal property of the decedent. The personal representative may maintain an action for the possession of real property; or to determine the title to real property.”* While this provision of Indiana law permits the personal representative to take action with respect to property of the decedent, it does not supersede the rights of a surviving joint lessee of a safe deposit box. Ind. Code 29-1-13-1.5 provides clear guidance for banks to follow as to the order of priority to access to a safe deposit box. It provides: “Upon the death of an individual, a financial institution shall grant access in the following order of priority to a safe deposit box leased by the individual at the time of the individual’s death: (1) A surviving joint lessee of the safe deposit box, upon the presentation of proof of the individual’s status as a joint lessee. (2) The personal representative of the individual’s estate, upon the presentation of letters testamentary or letters of administration. (3) The personal representative named in the individual’s will, upon the presentation of an affidavit meeting the requirements of subsection (c) if a probate estate has not been opened. (4) The trustee of a trust created by the individual that was revocable during the individual’s life, upon the presentation of an affidavit meeting the requirements of subsection (c) if a probate estate has not been opened. (5) Any other individual, upon the presentation of a court order directing access to the safe deposit box.” This language should not be interpreted to mean that the surviving joint tenant has access first, after which the personal representative may access the safe deposit box; rather, the surviving joint tenant is presumed to be the only individual authorized to access the safe deposit box. While the personal representative may attempt to rebut this presumption in court by asserting ownership of the contents of the box over the interests of the joint tenant, absent a court order awarding such ownership rights, the bank should follow the order of priority required by the statute. HB * Ind. Code § 29-1-13-1 This information is provided for general education purposes and is not intended to be legal advice. Please consult legal counsel for specific guidance as to how this information applies to your institution’s circumstances or situation. Safe Deposit Box Access Priority In the event of the box owner’s death
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