Yesterday I met with two brothers all set to probate the estate of their father.  Their situation is a story of good news, bad news.

Bad News:  The father's will is in the safe deposit box. 
Good News: They do have the key to the box.  If they did not, they'd probably have to have the box drilled and pay the cost of drilling.
Bad News: The father is the only named lessee (tenant) on the box.  Safety deposit boxes are leased from the bank.
Good News:  Colorado law provides that the bank must allow a person who is an heir or likely devisee (person named in a will) access to a safety deposit box.  If there is a will in the box, the same statute, CRS 15-10-111, also mandates that the bank official must take possession of the will, make a copy available, and send a copy to the probate court.  This law applies even if the deceased was only a joint owner to the box and the other owner is still alive. From my experience working with other attorneys and residents with second homes outside Colorado, I know that the law of some other states is not as easy and may require a court order to access the box.
Bad News:  The bank won't let them into the box without a death certificate.  The county hasn't yet provided them with copies of a death certificate.  This is understandable from the bank's perspective.  I don't want them taking someone's word for it that I'm dead in order to get access to my things.
More Bad News:  Dad didn't keep a copy of the will in the house, so we can't even begin to draft the probate application because we don't know what the will says.  Without that, I can't begin to act as anyone's attorney because the family wants me to represent the personal representative (they're fairly certain it's one of the two brothers) but we don't know yet who that is.  I can't represent both brothers because that would be a conflict of interest.

So, we're waiting not so patiently for the county to provide a death certificate so we can access the box, learn the contents of the will and start the probate process. 

How could this have been avoided?  First, my strong preference is not to keep the will in the safe deposit box.  I suggest a fireproof box or safe that you can keep at your house.  You can get those at hardware stores or office supply stores.  If that's not acceptable, at least make sure a copy of the will is available.  That's why we provide clients with the original will and an unsigned copy they can keep with their powers of attorney and other important documents.  A power of attorney should definitely not be in a safe deposit box because no one will be able to access it without a court order.  If you do decide to keep your will in a safe deposit box, you may want to name a second person as a joint owner so he or she can access the box when needed.  Of course, one of the reasons naming a co-owner is not my first choice is that the co-owner of the box is also presumed a co-owner of its contents so you must be comfortable allowing that person to take possession of the contents of your box, including any jewelry, cash, etc.

This is a practical example validation of my philosophy that planning is more than documents.  Once you've completed the documents, you must plan for how they will be used by your helpers and loved ones.  That's why planning is a process that requires experienced advice and assistance along with ongoing maintenance and updating.

'Nuff said.