In short: Three Florida Probate Rules come up constantly: Rule 5.043 on what the clerk does with deposited original wills, Rule 5.360 on how a surviving spouse elects the 30% elective share, and Rule 5.440 on removing a personal representative. Each one pairs with a statute that sets the deadline or the grounds.
Rule 5.043: Depositing an Original Will
Florida law requires whoever has custody of a will to deposit it with the clerk of court in the county where the decedent lived within 10 days after learning of the death (§ 732.901). That applies whether or not anyone plans to open probate.
Rule 5.043 tells the clerk what to do once it has the will: keep the original, including an electronic will, in its original form, and do not destroy it for 20 years unless the court orders otherwise, even if it has been permanently recorded. The committee notes explain that the original’s physical form can matter as evidence later, for example in a forgery or revocation fight.
Rule 5.360: Electing the Elective Share
A surviving spouse can take 30% of the elective estate instead of what the will leaves. The deadline comes from § 732.2135: the earlier of six months after service of the notice of administration or two years after death. Missing it usually ends the right.
The spouse files the election and promptly sends a copy to the personal representative. An agent under a power of attorney or a guardian of the property can elect for the spouse, but only with court approval and a finding that electing is in the spouse’s best interests for the rest of their expected life.
Within 20 days the PR must serve a notice of election on interested persons, who then have 20 days to object with specific reasons. If no one objects, the court enters an order of entitlement. The PR then has deadlines to serve an inventory of the elective estate and petition the court to set the amount and contribution from each recipient. The spouse can seek an extension for good cause within the election period, and can withdraw the election within the time the law allows.
Rule 5.440: Removing a Personal Representative
Removal starts on the court’s own motion or by petition of an interested person, with formal notice to the PR. The grounds are in § 733.504, including mismanagement, failure to account or comply with court orders, conflicts of interest, and becoming disqualified.
A removed PR must file and serve a final accounting (§ 733.508) and turn over estate property and records to the successor (§ 733.509). Removal does not end the former PR’s exposure for surcharge if they caused losses.
Lessons
- If you have a loved one’s original will, file it with the clerk within 10 days of the death.
- Surviving spouses: calendar the elective share deadline the day the notice of administration arrives.
- Beneficiaries worried about a PR should act early; removal petitions need specific grounds under § 733.504.
- Read the rules and statutes free on floridarules.net.
Source: Florida Probate Rules 5.043 and 5.360 on floridarules.net
Watch the Video
Short explainers on each rule. Read the full text of each rule on floridarules.net.
Florida Probate Rule 5.440: Removal of Personal Representative
Florida Probate Rule 5.043: Deposit of Wills and Codicils
Florida Probate Rule 5.360: Elective Share
Go Deeper
- A Photocopied Will, No Disinterested Witness: Lost Will Rejected on Appeal (Pilak v. Reigel)
- When an Elderly Victim Dies Before Trial: The Elderly-Person Hearsay Exception (Conner v. State)
- How to Challenge Probate Attorney Fees in Florida (§ 733.6175)
Frequently Asked Questions
How long do I have to deposit a will in Florida?
Within 10 days after learning of the death, the custodian must deposit the original will with the clerk under § 732.901.
What is the deadline for the elective share in Florida?
The earlier of six months after service of the notice of administration or two years after death, under § 732.2135.
Can a power of attorney elect the elective share for a spouse?
Yes, but only with court approval and a best-interests finding, under Rule 5.360.
How do you remove a personal representative in Florida?
Petition the court under Rule 5.440, with formal notice, based on the grounds in § 733.504.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate, trust, guardianship and elder-exploitation disputes from St. Petersburg. If you need a probate litigation lawyer, 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.
