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Court will grant a petition to access contents of a safe-deposit box only to a distribute, beneficiary, or fiduciary. In re the Estates of Adelewitz, 24 Misc. 3d 374 (N.Y. Sur. Ct. 2009)


While people often use safety deposit boxes to hold valuable items such as jewelry, cash, and collections, they also use them to store important papers such as wills and other estate documents. Upon death, it is important to immediately access the contents of safe deposit boxes, particularly if they contain the decedent’s will.

In New York, the only way to access the safe deposit box of a decedent is with a court order. The court will only entertain petitions to open safe deposit boxes if they are from a the nearest surviving distribute, a beneficiary, or the fiduciary. SCPA §2003. In the case of In re the Estates of Adelewitz, the court considered who has the right to petition access to safe deposit boxes that were part of the estates of a husband and wife- Steven and Rita Adelewitz.

Steven died before Rita. In the case of Steven’s estate, Steven’s brother appears to be an interested party. However, because Steven died before Rita, Steven’s brother is not a distribute of Steven’s estate and not have the legal right to petition for access to the safe deposit boxes.

The petitioner in Rita’s estate is an alleged first cousin.  The cousin alleges there are 5 first cousins who are the closest relatives and, therefore, distributees of Rita’s estate. The question before the court is whether Rita’s cousins have the right to open the boxes, of if the Public Administrator must, and who has the right to view the contents of the boxes.

SCPA §2003 provides who may petition the surrogate’s court for an order to open a safe deposit box, but does not specify who may examine the contents of a decedent’s safe deposit box. The court has consistently required that the petitioning party must be either a distributee of the decedent, the nominated fiduciary (executor or executrix), or designated beneficiary in a will, or the beneficiary of an insurance policy.  See Matter of Sanchez, 140 Misc 2d 273, 274 (1988)

Steven’s brother does not have the right to review the contents of the safe deposit boxes because he is not a distribute. As for Rita’s cousin who wishes to access the safe deposit boxes, the court found that in order to establish their status as distributees, cousins must prove that there were no closer relatives.  New York law of intestacy provides a framework for determining order of priority for inheriting from an intestate estate. EPTL 4-1.1. The cousin must also prove that they are in fact relatives of the Rita. A kinship hearing would be required to prove consanguinity.

However, in this case the court determined that the box can be opened by a Public Administrator. Where the box can be opened by a public official to establish whether it contains any items that require administration, it is too early to conduct a kinship hearing to determine the status of the alleged cousins.

Thus, both petitions were denied and the Public Administrator was directed to open the boxes and review their contents.

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