When a North Carolina superior court clerk shows up to inventory a decedent's safe deposit box, must the bank let in the family or the family's attorney too, and does the clerk have to give the bank advance notice?
Plain-English summary
The Wake County clerk of superior court ran into a recurring problem in 1995: banks kept refusing to let the clerk into deceased customers' safe deposit boxes unless a family member was also present. The clerk asked the AG to settle two questions about the procedure under G.S. § 105-24.
First, who has to be present at a safe deposit box inventory? The statute requires "the presence of the clerk of the superior court of the county in which such lock box is located" and the inventory has to be done "in the presence of an officer or representative of the [bank]." That is the complete list. The clerk and a bank representative are the only persons whose attendance is required. The bank cannot lawfully insist on a family member being present. The clerk may allow others to witness if the clerk wishes, but the statute does not require it and the bank cannot demand it.
Second, must the clerk notify the bank in advance? The statute is silent. But the AG concluded that since both the clerk and a bank officer must be present, the clerk has to give the bank enough notice to arrange for someone to be there. Once that notice is given, the bank may not refuse the clerk access.
The AG also clarified delegation. Under G.S. § 7A-102(b), the clerk can designate any assistant or deputy clerk to perform the inventory. The bank can designate any officer or representative, which the AG read to include any employee or agent of the bank with authority to access the boxes. So the actual humans in the room could be a deputy clerk and a bank employee rather than the clerk and a bank officer.
The statutory-construction principle was the standard one: when a statute is clear and unambiguous on its face, courts must give it its plain meaning, and cannot add provisions or limitations not found in the statute (citing State ex rel Utilities Comm. v. Lumbee River Electric Membership Corp., 275 N.C. 250, 166 S.E.2d 663 (1969)). The statute lists who must be present. It does not authorize the bank to expand that list. Done.
Currency note
This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. G.S. § 105-24 has been amended since 1995, and the broader estate-tax framework in Chapter 105 has been heavily revised, including the eventual repeal of North Carolina's estate tax (effective for decedents dying on or after January 1, 2013). The structural rule for who attends a safe deposit box inventory has continued to be a narrow clerk-and-bank matter, but the underlying statute and any banking-industry practice should be verified with current law.
Background and statutory framework
G.S. § 105-24 was originally part of North Carolina's estate-tax enforcement scheme. When someone died holding a safe deposit box, the contents of that box (cash, securities, jewelry) were potentially part of the estate, and the State had an interest in knowing what was there before the heirs took possession. The statute conscripted the clerk of superior court into the inventory role: a neutral officer to record what was actually in the box, with a copy of the inventory going to the Secretary of Revenue, the executor or administrator, and the bank.
The procedure was designed to be tight. The bank had a duty not to open the box without the clerk; the clerk had a duty to inventory it in the bank's presence. Family members were not part of the protocol. They could see the inventory after it was complete, since they got a copy. But the inventory event itself was the State's snapshot, not a family viewing.
Banks sometimes resisted this framing. From the bank's perspective, the family or its attorney was the customer of record (through the decedent's lease) and the bank wanted to be sure it was handing over contents to the right person. The AG opinion clarified that the bank's customer-protection concerns did not give it a statutory hook to expand the attendance requirement. The clerk's inventory was a creature of statute, not contract.
The dual-disclosure mechanic (copy to the Secretary of Revenue, copy to the heir or executor) helped reconcile these interests. The clerk's office acted as the State's eyes; the heirs got a separate verification through their copy. The bank's records were also protected because it got its own copy. Nobody had to be left without an audit trail.
Common questions
If I'm the executor or attorney for the estate, can I demand to be present at the inventory?
Under the 1995 opinion, no demand right. The clerk may let you observe if the clerk chooses, but the statute does not require your presence and the clerk could decline to let you in. Practically, clerks often accommodated family or attorneys; legally, they were not required to.
Could the family's attorney lawfully prevent the inventory from happening without an attorney present?
No. The clerk and a bank officer were the only required attendees. An attorney could not block the inventory simply because the attorney was not invited.
What if the bank claims it can't let the clerk in without first verifying who has authority over the estate?
The bank had no statutory standing to refuse on that basis. Once reasonable notice was given, the bank had to arrange for an officer or representative to attend the inventory.
Did the clerk have to attend personally?
No. G.S. § 7A-102(b) allowed the clerk to designate an assistant or deputy. The bank likewise could designate any officer or qualifying representative.
Source
Citations
- N.C.G.S. § 105-24(b)
- N.C.G.S. § 7A-102(b)
- State ex rel Utilities Comm. v. Lumbee River Electric Membership Corp., 275 N.C. 250, 166 S.E.2d 663 (1969)
Original opinion text
July 12, 1995
The Honorable John M. Kennedy Clerk of Wake County Superior Court
P.O. Box 351 Raleigh, North Carolina 27602-0351
Re: Advisory Opinion; Inventory of Safe Deposit Boxes ( N.C.G.S. § 105-24)
Dear Mr. Kennedy:
This will respond to your request for an opinion regarding the procedures for inventorying safe deposit boxes of deceased persons. In your request, you suggested that banks seem to be misinterpreting these procedures and on several occasions your office has been denied entrance to these boxes. You also take the view that any person the clerk feels is appropriate should be allowed to witness a safe deposit box inventory and that the bank has no obligation to be concerned with who is representing the family.
Questions of Law
You have asked us to give you an opinion on two questions of law. First, who should be present at the time of a lock box inventory? Second, whether the clerk is required to inform the bank in advance of a lock box inventory?
Discussion
As you know, the procedures for opening and inventorying the safe deposit box of a decedent are governed by the provisions of N.C.G.S. § 105-24(b). In relevant part, this section of law provides that banks, safe deposit companies, trust companies, corporations or other institutions (collectively hereinafter referred to as "banks")
. . . shall, upon the death of any person using or having access to [a] lock box, as a condition precedent to the opening of such lock box by the executor, administrator, personal representative, lessee or co-tenant of such deceased person, require the presence of the clerk of the superior court of the county in which such lock box is located. It shall be the duty of the clerk of the superior court, or his representative, in the presence of an officer or representative of the [bank], to make an inventory of the contents of such lock box and to furnish a copy of such inventory to the Secretary of Revenue, to the executor, administrator, personal representative, or co-tenant of the decedent, and a copy to the [bank] having possession of such lock box. . . .
We did not find any reported decision construing this section of the law. We must, therefore, proceed on the principles of statutory construction. N.C.G.S. § 105-24(b) clearly sets forth two very specific requirements. First, a bank may not enter a safe deposit box of a decedent, or one to which a decedent had access, without the presence of the clerk of superior court of the county wherein the box is located. Second, the clerk, or his or her designated representative, must open and inventory the box in the presence of an officer or representative of the bank.
The pertinent rule of statutory construction provides that when a section of law dealing with a specific matter is clear and unambiguous on its face, it requires no construction and courts must give the law its plain and definite meaning. They do not have the power to interpolate, or superimpose, provisions or limitations not found in the statute. See, 27 Strongs N. C. Index, Statutes § 28 (1994). See also, State ex rel Utilities Comm. v. Lumbee River Electric Membership Corp., 275 N.C. 250, 166 S.E.2d 663 (1969). Applying this principle of statutory construction to the foregoing provision of law, relative to your question of who should be present at the inventory of a safe deposit box, we conclude that the only persons who must be present are the clerk of superior court and an officer or representative of the bank.
The clerk of superior court may, pursuant to N.C.G.S. § 7A-102(b), designate any assistant or deputy clerk of superior court to perform this function. The bank may designate any officer, or representative (which we would construe to include any employee or agent of the bank with authority to access safe deposit boxes), to be present. In other words, there is no requirement that a family member be present, nor do we think that the bank may lawfully insist that a family member be present before the clerk may proceed to inventory a safe deposit box. Also, while the clerk may wish to allow others to witness the inventory of a safe deposit box, the law does not require the presence of others. We are, therefore, of the opinion that the clerk could not insist on the presence of anyone beyond an officer or representative of the bank before proceeding with the inventory.
With regard to your second inquiry, the question of whether the clerk is required to inform the bank in advance of a lock box inventory, that issue is not, unfortunately, addressed by the statute. We conclude, however, that, as the presence of both the clerk of superior court and an officer or representative of the bank is required before the safe deposit box of a decedent may be opened and inventoried, as a practical matter, the clerk must give the bank sufficient notice as will allow it to arrange for entrance into a lock box. Again, however, with reasonable notice, the bank may not deny the clerk access to the safe deposit box.
We trust that this responds to your questions. If, however, we may be of further assistance, please do not hesitate to let us know.
Ann Reed Senior Deputy Attorney General
L. McNeil Chestnut
Assistant Attorney General