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Deposit of Last Will and Testament with the Clerk

| Jul 22, 2020 | Elder Law, Estate Planning, Probate |

When a person dies resident in Florida, their original Last Will and Testament (“Will”) must be deposited with the Probate Division of the Clerk of Court of their county of residence. The applicable statue governing this procedure is Section 732.901, Fla. Stat. entitled “Production of wills” which provides as follows:

(1) The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. The custodian must supply the testator’s date of death or the last four digits of the testator’s social security number to the clerk upon deposit.

As a practical matter, while the deposit is supposed to be made within ten days, there’s not really a consequence if it is not done timely. There are no probate police to come enforce the deposit statute. However, the custodian of an original Will should be aware that if another person has to compel the deposit through court action, the custodian may be responsible for that person’s attorney’s fees and cost.

What happens when a person brings the original Will to the Clerk to be deposited? Usually the Clerk will give the depositing party a receipt evidencing that the deposit has been made. If you are the one making the deposit, make sure to keep the receipt. The Clerk will list the Will on the Clerk’s docket so that a search will disclose that the Will has been deposited. In most counties, the Will deposit is given a case number, much like a probate case, but it is not assigned to a judge. By statute, the Clerk is required to maintain the original Will for at least 20 years.

However, there is one common misconception about depositing a Will with the Clerk. This does not initiate or open a probate. Depositing the Will is a separate, administrative step, although sometimes it is done simultaneous with the filing of the probate. In order to actually open a probate, an interested party must prepare a petition for administration and other required probate documents (usually through an attorney). These documents are filed with the Clerk along with a filing fee, and that initiates the probate.

If a loved dies and you hold the original Will, you should consult an experienced probate attorney who can guide you through the deposit process. One bit of advice you should always follow: make a complete copy of the Will before you deposit it. An attorney can also advise you on whether filing a probate will be necessary.

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