Florida Statute §732.901 states that “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 death or the last four digits of the testator’s social security number to the clerk upon deposit.” The full text is as follows:
Fla. Stat. 732.901: Production of Wills:
(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.
(2) Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will. All costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.
(3) An original will submitted to the clerk with a petition or other pleading is deemed to have been deposited with the clerk.
(4) Upon receipt, the clerk shall retain and preserve the original will in its original form for at least 20 years. If the probate of a will is initiated, the original will may be maintained by the clerk with the other pleadings during the pendency of the proceedings, but the will must at all times be retained in its original form for the remainder of the 20-year period whether or not the will is admitted to probate or the proceedings are terminated. Transforming and storing a will on film, microfilm, magnetic, electronic, optical, or other substitute media or recording a will onto an electronic recordkeeping system, whether or not in accordance with the standards adopted by the Supreme Court of Florida, or permanently recording a will does not eliminate the requirement to preserve the original will.
(5) For purposes of this section, the term “will” includes a separate writing as described in s. 732.515.
(emphasis added)
A common problem in probate administration and probate litigation is the sometimes false claim by a family member or some other person that the deceased had a Last Will and Testament while simultaneously refusing to provide it. Florida law provides that upon petition and notice anyone who has the Will can be forced to provide it. So that means that if someone claims to have a Last Will and Testament but fails to provide it then you may bring an action to get a Court Order to force its production and if necessary you can recover costs, damages and attorney fees for the failure to deposit it. Florida law is clear that whomever is in possession of an original Last Will and Testament after being put on notice must have the Will deposited with the Clerk of Court.
The will also includes any separate writings identifying devises of tangible property often called “disposition list” or “devise list”. These lists must be turned in with the rest of the will and the Clerk will keep the will on deposit for 20 years.
In Rossen v. Bilchick, 46 So. 3d 1233 (4th DCA 2009), the appeals court was presented with a dispute between two sisters over their father’s will. One of the sisters had filed a petition under Florida Statutes Section 732.901, asking the custodian of the will to produce and deposit it with the court. A circuit judge had granted the petition without notice or hearing, and ordered the other sister to produce the will and pay $2,500 in attorney’s fees.
The other major strategy that can be employed depending on the circumstances is to proceed intestate. If the intestate structure is more favorable or the same as the withheld will, proceeding intestate will force the holder of the Last Will and Testament to file the document timely or lose the right to use it in Court.
We litigate will disputes throughout the State of Florida. If you have issues relating to depositing a Last Will and Testament or anything else related to a Florida Probate give me a call. We are here to help and offer free, no obligation consultations.
-Brice Zoecklein, Esq.
