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Do we need to file the will if nothing to probate? (Florida)

Jacksonville, FL |

Husband and wife living in Florida. Wife died, and nearly every asset was joint (except vehicles), or named husband as beneficiery. Exempt Property under Florida Statutes section 732.404 says that the two vehicles - worth about $7,000 total - in wife's name can be assumed by the spouse. Spouse is the heir specified by the will, which was created in their home state of PA. As there is nothing to probate in FL, does the will still need to be filed?

Husband has health issues, so I had to set up caregivers and see to his needs first. I just got around to investigating the probate issue, as it did not seem to be needed. I assume that there is no penalty for missing the 10 day window. Does the will that is filed need to be the one with the original signatures?

Attorney Answers 7


  1. Best answer

    Yes, the original will must be the one filed. No, missing the 10-day window will not get you into trouble. If the will devises ANYTHING of value that is not exempt property, then a probate may be necessary - if not, or if co-owned or exempt then no probate is called for.

    Carol Johnson Law Firm, P.A. : (727) 647-6645 : carol@caroljohnsonlaw.com : Wills, Trusts, Real Property, Probate, Special Needs: Information provided here is anecdotal and should not be relied upon or considered legal advice. Every matter is different and answers given here are general in nature and may not reflect current Florida law at the time you are reading this posting. Please contact me if you feel you need additional assistance with your matter.


  2. Yes, it must be deposited for safekeeping in the county that would have venue in a probate proceeding. Whether you believe that there are assets or not is irrelevant and the statute does not differentiate.

    The response given is general in nature and based upon limited information. It does not and cannot replace that of a proper consultation with a qualified attorney. You should not act upon this Information alone, but should seek legal counsel prior to taking any action.


  3. Florida statutes require the filing of the will of a deceased Florida resident within 10 days of notice of the death. This is the case even if there will not be a probate. There is no cost to file, but generally the Clerk of Court will want to review a copy of the death certificate and/or will request the Social Security Number of the deceased.

    Nothing in this post should be considered as specific legal advice, since the attorney has not been made aware of all of the facts and has not reviewed the pertinent documents. Further, this post is for informational and educational purposes and does not establish a lawyer-client relationship.

    Eileen D. Jacobs, Esq.
    Office: 2505 W. Virginia Avenue
    Tampa, FL 33607
    (813) 877-9600
    Mailing: P.O. Box 14953
    Clearwater, Florida 33766-4953
    (727) 787-6595


  4. Yes-Statutes require it to be filed within 10 days even if probate is not required.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  5. I agree with my colleagues. The will needs to be filed, but you won't have to go through probate.

    Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.


  6. You need to record the Will in the public records of the County he lived in when he passed away. There is a Florida law that says that the Will should be deposited within 10 days of death. You will not get in trouble for not doing that, but that is what the statute says.(904)366-2703


  7. I also agree with my colleagues that you should deposit the will with the Clerk of Court in the county the decedent passed in even if there is nothing to probate in said county.

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