Understanding Florida's 10-Day Rule for Probate

Florida’s 10-day rule for probate is about getting an original will to the court clerk. The statute describes a 10-day deadline for the custodian of a will to deposit it with the clerk after learning the person who wrote it has died, and how that deadline applies depends on applicable law and the facts of each case. That duty comes from Fla. Stat. § 732.901.

What the 10-day rule says in Florida

Under the statute, the custodian of a will must deposit it with the clerk within 10 days after receiving information that the testator is dead. The testator is the person who made the will. The deposit goes to the clerk of the court with venue of the decedent’s estate. Upon deposit, the custodian may be required to give the clerk the testator’s date of birth or the last four digits of the testator’s Social Security number, depending on applicable law and the facts of each case.

How it applies to any real situation depends on the governing will, applicable Florida law, and the facts of each case. A general guide cannot tell you how the timing works for your facts.

Who may be the custodian of the will?

The custodian is generally the person who holds the original will. In everyday terms, that is the person with the original document in hand.

That person might be a relative, a friend, an attorney, or someone the will names. Responsibility for this duty may depend on the governing instrument, applicable Florida law, and the facts of each case, and it is not necessarily limited to the person named as personal representative (often called an executor). Whether it applies to you depends on the governing will, applicable Florida law, and the circumstances.

What a custodian may do to comply

A custodian may take a few practical steps to meet the deposit requirement. Steps that may be relevant include keeping the original will in its original form, avoiding marks or changes to it, and arranging delivery to the clerk, depending on applicable law and the facts of each case. Keeping a written record of when you learned of the death, and proof of delivery, may also help if questions come up later.

The steps that fit your situation depend on the governing will, applicable Florida law, and the facts of each case.

Once the clerk receives an original will, the clerk generally must keep the original for at least 20 years, and electronic storage may not replace the original; how this applies depends on applicable law and the facts of each case.

Is there a penalty for missing the 10-day window?

The statute lets a court order a custodian to deposit a will. In some cases, it also allows costs and fees.

Under § 732.901(2), the custodian may be compelled to deposit the will, upon petition and notice. If the court finds the custodian had no just or reasonable cause for the failure, the statute addresses costs, damages, and a reasonable attorney’s fee for the petitioner, and how that applies depends on applicable law and the facts of each case.

Whether those consequences apply to a particular situation depends on the governing instrument, applicable Florida law, and the facts of each case.

Is probate always required, and can an estate be settled without it?

Whether probate is required may depend on the governing instrument, applicable Florida law, and the facts of each case. Whether it is needed depends on the estate’s assets, how they are titled, and any trust or other documents.

Florida law has a path with no formal administration for some small estates. Fla. Stat. § 735.301 says no administration is required for an estate leaving only certain exempt personal property. The same path covers nonexempt personal property that does not exceed preferred funeral expenses and reasonable medical and hospital expenses of the last 60 days of the last illness.

Under Fla. Stat. § 735.301, upon informal application by affidavit, letter, or otherwise by an interested party, and if the court is satisfied that the statute’s conditions apply, the court may authorize the payment, transfer, or disposition of the decedent’s personal property to those persons entitled, and whether this route fits depends on the estate’s details, the court’s decision, and applicable Florida law. Some assets may pass outside probate, depending on how they are held. That may depend on the governing documents, applicable Florida law, and the facts of each case.

Self-proved wills and witness availability

Timing depends on the estate, the court’s schedule, and the facts. No single number fits every case.

A will may be admitted to probate without further proof if it is self-proved. Under Fla. Stat. § 733.201, if it appears to the court that the attesting witnesses cannot be found, have become incapacitated after the will was executed, or cannot testify within a reasonable time, the statute addresses how a will may be admitted to probate in that situation, and how it applies depends on applicable Florida law and the facts of each case. How any of this applies depends on applicable law and the facts.

Quick answers to common questions

Does filing a petition count as a deposit? Under § 732.901(3), an original will submitted to the clerk with a petition or other pleading is deemed deposited with the clerk.

What if the original will is lost? This guide does not resolve that question. The answer depends on the will, applicable Florida law, and the facts. A lawyer can discuss the options for your situation.

Where a Coral Gables attorney may help with your situation

If you are holding an original will after a loved one has died, you may be unsure whether to file it now. You may also be facing a family disagreement about the estate. Those are hard moments, and you don’t have to sort them out alone.

Trust Counsel’s lawyers may advise or represent clients on probate questions, subject to the governing instrument, applicable Florida law, and the facts of each case. Trust Counsel, PL’s only office is in Coral Gables, Florida. Leslie V. Marenco is the lawyer responsible for this page.

For related reading, see the probate litigation attorney page and the guide on how to contest a will.

The first consultation is free, confidential, and carries no obligation to continue. Every matter depends on its own facts, and no result can be promised. To talk through your situation, call (305) 707-7126 or schedule online.