In our view, the executor is entitled to access the box without the permission of the surviving co-lessee, provided that the executor presents the bank with letters of office, a small estate affidavit or an applicable court order, as required by the Safe Deposit Box Opening Act.

We are aware that the surviving co-lessee could be harmed by the executor unilaterally accessing the box and removing its contents, which may or may not now belong exclusively to the surviving co-lessee. However, such potential concerns are beyond your bank’s control — the Act requires your institution to permit an executor who presents the required documentation to access the box and remove its contents.

We should note that since your account agreement does not appear to create a right of survivorship in the contents of the box, your bank should take care not to treat your agreement as if it does. Under the Illinois Joint Tenancy Act, a right to survivorship in personal property is created only when a written instrument expressly grants that right. Illinois courts have held that language in a safe deposit box account agreement providing both co-lessees equal access to the contents of the box — without clearly expressing the intention to create survivorship rights — is not enough to create a right of survivorship. Since your safe deposit box account agreements do not expressly mention survivorship rights, we do not believe that the contents of the box automatically pass to the surviving leaseholder – at least by virtue of your account agreement.

For resources related to our guidance, please see:

• Safety Deposit Box Opening Act, 755 ILCS 15/1 (“The lessor shall authorize a representative of a decedent’s estate or a person designated in a small estate affidavit pursuant to Article XXV of the Probate Act of 1975, upon presentation of letters of office, other applicable court order, or small estate affidavit to open the box and examine and remove the contents.”)

• Joint Tenancy Act, 765 ILCS 1005/2 (“Except as to executors and trustees, and except also where by will or other instrument in writing expressing an intention to create a joint tenancy in personal property with the right of survivorship, the right or incident of survivorship as between joint tenants or owners of personal property is hereby abolished, and all such joint tenancies or ownerships shall, to all intents and purposes, be deemed tenancies in common.”)

• O’Vadka v. Rend Lake Bank, 561 N.E.2d 360, 365 (Ill. App. 5th Dist. 1990) (“The following conditions must be met in order to establish a joint tenancy with right of survivorship as personal property, and, except as the statute makes specific provisions governing certain other cases, the requirements are the same whether the property in question is located in a safety deposit box or elsewhere: (1) such an interest can be created only by means of a written instrument; (2) the instrument must express an intention to create a joint tenancy in personal property and apparently must expressly provide that the property so held is to be subject to the right of survivorship between the owners thereof; and (3) the instrument should comply with the general requirements of a will as to definitions of description of subject matter, parties, and certainty of its object.”)

• David v. Ridgely-Farmers Safe Deposit Co., 95 N.E.2d 725, 732 (Ill. App. 3d Dist. 1950) (“It seems abundantly clear that the agreement relied upon by defendant in the instant case does not meet the required conditions noted above to establish a joint tenancy in the currency in the box which was rented in her name and that of plaintiff's deceased wife. While the agreement is in writing, is styled a ‘joint deposit box agreement’, and provides that the depositary ‘may’ deliver the box contents to either renter or the ‘survivor’, there is no clearly expressed intention to create a joint tenancy in the parties nor to vest them with the right of survivorship. Furthermore there is no sufficient description of the property to be held in joint tenancy, particularly in view of the requirement stated in the Wilson case that where cash or currency is the subject matter of the joint tenancy, the amount must be specified in the instrument relied upon.”)