The comprehensive guide to probate, trusts, estate planning, and inheritance litigation.

Do You Have to Probate a Will in Florida

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No. The simple answer is that you do not have to probate a will in Florida.

There is no requirement under Florida law that anyone is required to probate a will. The real question, however, is whether, under the circumstances, the will should be probated.

When Should You Probate A Will in Florida?

Here are some considerations as to whether a will should be probated:

  • Whether there are probate assets as opposed to non-probate assets (see what the difference is Assets of the Deceased). Many people arrange their affairs so as to avoid probate, so that there are no assets to probate. This can include putting assets into a revocable trust before death, using pay on death designations for accounts, or titling assets joint-with-right-of-survivorship. If there are no assets to probate, there would be no reason to probate a will.
  • Whether the debts of the decedent outweigh the assets. If the decedent had more debts that assets, probate could be a waste of time and money, if only the creditors are going to benefit. Of course, any creditor could probate the estate to get paid; but there is no obligation as a beneficiary of an estate to open probate for the purpose of benefiting only creditors. If the creditor period has expired, then it might make sense to probate an estate.
  • Whether a wrongful death claim can be filed. When someone has been killed through the fault of another, a wrongful death claim might be filed. Under Florida law, only the personal representative of the estate can file the wrongful death claim. Accordingly, even in the absence of probate assets, a probate estate would need to be opened to file a wrongful death claim.
  • Whether the decedent was involved in litigation. If the decedent was involved in litigation before death, such as a personal injury lawsuit, the probate estate will need to be opened so that the estate can be substituted in for the decedent in the litigation. Florida has a simple procedure for doing this; however, the procedure should always be followed.

Do Wills Have To Be Filed With The Court in Florida?

Yes. Florida law requires that if you have a decedent’s original will, you have to file it within ten days of learning of the decedent’s death.  Filing the will is not the same thing as probating the will.  Filing the will simply puts the original will into the custody of the court.  Admitting the will to probate requires a petition to administer the estate.

Complete Guide to Florida Probate

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