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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Retrieving Will From Safe Deposit Box

1:32 PM
Merri Rudd

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: I read your column about storing wills in a bank safe deposit box. What if an individual doesn't add another name to the box? How do you get the will out? My bank says a personal representative must be appointed before it can release the will. But I thought a personal representative can't be appointed without the will? M.J.H., Albuquerque

Your bank needs to brush up on New Mexico law. The law states that the bank shall permit "the spouse, a parent, an adult descendant or a person named as an executor in a copy of a purported will" of the decedent to open and examine the contents of a safe deposit box leased by the decedent. A very similar law exists for credit unions.

The bank shall also permit access to any person named in a court order for the purpose of opening and examining the contents of a safe deposit box.

If the safe deposit box has no other tenant, the executor (called a personal representative in New Mexico) or other person is allowed to examine the contents of the safe deposit box in the presence of an officer of the bank. The personal representative or other person is allowed, without a court order, to remove:

  • the decedent's will;
  • a deed to a burial plot or burial instructions; or
  • an insurance policy on the life of decedent to the beneficiary named on the policy.

The bank can release those items after the person seeking the documents signs a receipt listing the items that are removed.

Testators should store a copy of their will outside of the safe deposit box and tell their personal representative where that copy is. Taking the copy to the bank or credit union should help obtain access to the box.
The bank should not release any other documents until the court appoints a personal representative for the decedent's estate. If the will is in the safe deposit box and the bank refuses to release the will, the personal representative, through an attorney, can apply for a court order authorizing the bank to release the will.

A court order should be unnecessary if you follow the procedures set out in the law, New Mexico Statutes Annotated, Sections 58-1-14 and 58-11A-4. People might ask their banks or credit unions what the policy is regarding retrieving wills from safe deposit boxes. I hope readers discover that many banks and credit unions do honor this New Mexico law. 

© 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved

Appeared November 14, 2002, Albuquerque Journal, Business Outlook
Reprinted with permission 

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