In short: Whoever holds a Florida decedent’s original will must deposit it with the clerk within 10 days of learning of the death (§ 732.901). The court can compel production and award fees against a holder without just cause. If the original is lost, § 733.207 lets an interested person prove its terms with disinterested witnesses.
Mom always said she had a will. Nobody can find it. Or worse: your brother has it, and he isn’t handing it over.
In Florida, the original will matters, and the law has specific rules about it.
The Custodian Has 10 Days: § 732.901
“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.”
That applies to a family member holding the will in a drawer just as much as a lawyer holding it in a vault. Once deposited, Florida Probate Rule 5.043 governs how the clerk handles it.
If Someone Is Sitting on the Will, the Court Can Make Them Produce It
Section 732.901(2) gives you the tool:
“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.”
Note the words “petition and notice.” This statute is rarely litigated, but the appellate decisions that exist make one thing clear: the court has to follow due process. Orders entered without notice and a chance to be heard, including contempt orders, get reversed. Do it right the first time.
How to Find Out Whether There Was a Will
- Check with the clerk of court in the county where the person lived. The will may already be on deposit.
- Call the lawyers the person used, for anything. Lawyers commonly keep original wills in their files.
- Look through papers, files, and any home safe.
- Check for a safe deposit box. Under § 655.935, a spouse, parent, adult descendant, or person named as personal representative in a copy of a will can have the box opened, with a bank officer present, to look for a will.
- Ask financial advisors and accountants. They often know who did the estate planning.
Do You Need the Original?
Ideally, yes. Probate courts admit the original. But a missing original is not always the end.
Under § 733.207, “Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate.” The proof requirement is demanding: the testimony of two disinterested witnesses, or, if a correct copy is provided, one disinterested witness.
There is also a hurdle: when an original will that was last in the testator’s possession can’t be found, the law may presume the testator destroyed it intending to revoke it. That presumption can be rebutted, but it has to be dealt with.
If There Is No Will at All
Then Florida’s intestacy statutes decide who inherits. See the article on dying without a will in this series.
The Lesson for the Living
- Sign your will in a lawyer’s office.
- Leave the original with that lawyer, or deposit it with the clerk for safekeeping.
- Tell your family where it is.
- Be wary of wills that exist only as PDFs or were signed through an online service. Those are going to be litigated for years.
Watch: the videos behind this article
Florida Probate Rule 5.043 and § 732.901: Deposit and Production of Wills
Where Do I Find the Original Will in Florida? | What Happens If It Can’t Be Located
What Happens If a Will Cannot Be Found in Florida? | Missing Will & Intestate Succession
Do I need the original will?
More Short Videos on This Issue
Go Deeper
Frequently Asked Questions
How long do you have to file a will after death in Florida?
The custodian of the will must deposit it with the clerk of court within 10 days after learning of the death, under § 732.901.
What if someone refuses to turn over the will?
On petition and notice, the court can compel production. If the custodian had no just or reasonable cause, costs, damages, and a reasonable attorney’s fee are adjudged against them (§ 732.901(2)).
Can a copy of a will be probated in Florida?
A lost or destroyed will can be established under § 733.207 with two disinterested witnesses, or one disinterested witness if a correct copy is provided.
Can I open a safe deposit box to look for a will?
Yes. Under § 655.935, a spouse, parent, adult descendant, or person named as personal representative in a copy of a will can have the box opened, with a bank officer present, to search for a will.
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a probate lawyer in St. Petersburg for will deposit, lost wills, and probate, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
