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Law Requires Filing Last Will and Testament with the Probate Clerk

When a loved one passes away, having to file documents down at the local courthouse is not the top priority for those grieving their loss.  Family members and friends must be notified of the deceased’s passing.  Memorial services or funerals must be planned.

It can be overwhelming to learn that under Florida probate law, responsibilities exist almost immediately for those surviving the death of a spouse, father, or parent.  This is because Florida law creates an immediate transition of property ownership of the decedent’s holdings to his or her “estate,” as well as instituting a procedure for transitioning the estate to the decedent’s beneficiaries (and creditors as need be).

One of the first probate issues is locating the Last Will and Testament of the deceased, as well as the lists and other written statements that have been referenced in the will.

Fast Filing Deadline for the Will

Under Florida Statute 732.901, a deadline is created for filing the Last Will and Testament with the probate court.  It is a ten (10) day deadline for filing the will.

10 Day Deadline

The deadline applies to the custodian of the Last Will and Testament.  Under Florida Statute 732.901, the will’s custodian must deposit the will with the clerk of the court having venue of the estate.

The deadline begins to run on the day that the custodian is informed of the deceased’s passing.  The deadline is confirmed with the court clerk by a legal requirement that the date of death be given to the clerk (or the last 4 digits of the deceased’s Social Security identification number) at the time that the will is deposited with the clerk’s office.

This filing requirement applies not only to the Last Will and Testament but to any lists or written statements referenced in the will that comply with Florida Statute 732.515.

Original Documents Safeguarded for 20 Years

Once these documents have been turned over to the clerk, the clerk is given legal responsibility for their protection.  Under the law, the clerk must preserve the will in its original form, safeguarded in the courthouse, for at least 20 years.

Once a probate proceeding begins before the probate judge, the clerk continues to be responsible for safeguarding the original will, as well as any other pleadings filed in the probate matter.  Even if there is no formal probate instituted, the clerk still has to protect the filed will for the 20 year statutory period.

Finally, even if modern advancements like storing documents and filings on film, microfilm, magnetic, electronic, optical, or other substitute media or recording a will onto an electronic record keeping system will not alter the clerk’s duties here.  The clerk can choose to record the will electronically or digitally for ease of access.

The clerk must still safeguard the original document. Under Florida Statute 732.901, permanently recording a will does not eliminate the requirement to preserve the original will.

Failure to Deposit the Will with the Clerk

Sometimes, the decedent’s last wishes in the will are not welcomed by the beneficiaries.  There may be a temptation to hold onto the Last Will and Testament and not share its provisions with the rest of the family or the general public.

This hoarding of the will can be the basis of a special civil cause of action against the will’s custodian.  If the custodian fails to meet the 10-day filing deadline, then any interested party may petition the court to force the custodian to produce and deposit the will with the clerk.

Petition Can Include Attorneys’ Fees Award

Once the will has been deposited, the interested party can be awarded his or her costs and damages incurred in filing the petition to force the deposit of the Last Will and Testament.   Under Florida Statute 732.901, the custodian can also be forced to pay the interested party’s attorneys’ fees that were charged in filing the civil action to get the original will filed with the clerk’s office.

The only hope the custodian will have to avoid paying the costs, damages, and attorneys’ fees here will be to show with admissible evidence that he had a just or reasonable cause for failing to deposit the will with the clerk’s office.

The Case of the Two Sisters and The Failure to Deposit the Will

In the case of Rossen v. Bilchik, 46 So. 3d 1233 (Fla. Dist. Ct. App. 2010), two sisters fought with each other after the death of their father.  Janice Bilchik filed a petition in the local probate court pursuant to Florida Statute 732.901 because her sister had not filed their father’s Last Will and Testament with the clerk.  Janice wanted her sister held accountable for the missing and not filed Last Will and Testament.

Her sister, Betsy Ann Rossen, was custodian of their father’s will.  The judge heard Janice’s arguments and swiftly acted.  He entered a court order that Betsy was ordered to produce the will immediately and that she was to pay her sister $2500 as reimbursement of Janice’s attorneys’ fees.

However, the judge entered his ruling before there was an official hearing of the matter.  Betsy appealed his decision.  On appeal, it was held that Betsy had filed a timely objection to the judge’s order so it had to be set aside because there had been no evidentiary hearing before the ruling was made.

The case was returned to the probate court (remanded) where the issue would be revisited with both sisters having the opportunity to present evidence to the judge.

Where to File the Last Will and Testament in South Florida

The local clerk’s office can answer questions about the proper place to file a Last Will and Testament.  The clerk cannot give legal advice, however.  If you wonder if a document like a list or written statement should be filed as part of the will documents, then the clerk cannot advise you.

For these counties, here are links to find the filing locations:

What Should You Do?

If you or a loved one have questions concerning the steps to take after a loved one’s passing, or how best to protect your estate planning documents, including your Last Will and Testament, then having the guidance of an experienced Florida probate lawyer can be important.

Most Florida probate lawyers, like Larry Tolchinsky, offer free initial consultations.



Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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