When someone dies in Florida the decedent's original last will and testament needs to be deposited in the probate court where the decedent resided. Florida Statutes 732.901 sets this rule out in detail.  In particular, the statute requires that whoever is in possession of the original must deposit it with the court within ten (10) days from the date the possessor is notified of the decedent's death.  The statute provides penalties if the person in possession of the original will does not deposit it with the court in the required ten days, among other matters.

In our office, we frequently keep our client's original documents in our safe deposit box at our local bank. Our staff reads through the daily obituaries, cross-referencing the deceased with our client list. This lets us know when a client dies and allows us to send a letter to the family. This also lets us know when to deposit an original will with the probate court.

Late yesterday, after our office was closed, I received a frantic phone call from the surviving spouse of one of our clients.  The surviving spouse had received a copy of our letter where we sent her husband's original last will and testament to the probate court.  The spouse was confused about why we did this, what were the legal effects, would she be getting kicked out of her house, and had other questions.  She was so glad to reach me as she was very scared! It was my pleasure to talk to her and clarify her situation and that she was in no trouble at all.  I explained to her that:

  • Florida Statutes makes us deposit the original will with the appropriate court;
  • The court keeps the will for future possible use;
  • Just because the will is deposited with the probate court does not mean that she needed an attorney; and 
  • That there was nothing to probate and she had no problems at all.

I am sure that my client was going to have a much better night's sleep knowing there were no problems at all and that our depositing her husband's will was standard procedure.  The reality is that most people never deal with probate or the probate process, so I am sure that she, like so many others in the general public, did not know what to do.  This inspired me to come up with our new firm handout to send to the family where we deposited the will with the probate court.  This handout now reads as follows:


For your information, we have deposited your loved ones original last will and testament with the probate court for the county of your residence.  Florida statutes require the original will be deposited within 10 days of the decedent’s death.  The original will is placed in the county court for safekeeping and future reference.

Depositing the will does not mean that there is anything further for you or for us.  You may not need to probate anything and probably do not need an attorney at all. Generally, a probate is only needed when someone died with assets in their own, individual name.  If that is the case, you are welcome to call us and review the probate procedure together.

As a surviving loved one or family member, when you have the time, you may want to review your own last will and testament and other estate planning documents to make sure they meet with your wishes. We believe that people should review their own estate plan at least every three years, so it may be time for us to get together.

Please accept our deepest condolences on the passing of your loved one and do not hesitate to call if you have any questions.  Thank you.

We are always trying to better our law practice in order to give the best service to our clients possible.  With this handout, we hope to never receive another frantic phone call from a family member!  If you or a loved one ever has a question on probate, estate planning or the avoidance of probate, please do not hesitate to contact our law firm. Thank you!

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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David Holloway 10/09/2020 10:54 AM
Is 'Depositing' the Will and 'Filing' the will the same thing? If not, then what is the difference?
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D. "Rep" DeLoach III 10/09/2020 11:04 AM
Depositing the will is the same thing as filing the will with the court of the county of the decedent's residence - this means the same thing. Good question!
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brooklyn 05/21/2021 10:21 AM
Do you need to have the death certificate present in order to file the deceased's will?
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