Southwest Florida

Don’t Lose Your Original Will!

In Florida, photocopies of your Revocable Living Trust, Durable Power of Attorney, Designation of Health Care Surrogate, and Living Will are as legally effective and valid as your original, “wet ink” document. But it’s a different story with your Last Will and Testament.

original Will

First, Florida actually has a law (Fla. Stat. 732.901) that requires 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 date of death or the last four digits of the testator’s social security number to the clerk upon deposit.”

That mean that whoever has possession of an original Will must give it the probate clerk of the county in which the deceased person lived within 10 days of learning that the person died. So, if Bob lived in Manatee County, and his daughter who lives in New York actually had physical possession of Bob’s original, “wet ink” Will, she needs to mail or bring it to the Probate Clerk in Manatee County, Florida – even if no probate is expected.

As of this time, there’s no SWAT team going door-to-door, demanding that Wills be deposited. The law is actually there to protect the family – the courts want the most current, valid Will in the court’s hands in case someone (perhaps a law firm that’s holding Bob’s Will from 15 years ago) finds an original Will and also deposits it with the court. IF there’s a probate later on, the court will need to determine which Will is actually in force. Also, if Bob’s son in Virginia is in possession of Bob’s original Will and doesn’t want to produce it, a probate attorney can force him to through the use of that statute.

If there is a probate needed, and no original Will was already deposited with the probate clerk, then the person seeking to open the probate will need to produce one. A photocopy will not be accepted by the court except in very limited circumstances that are so rare they’re not even worth discussing. Generally, if the deceased person had possession of the original Will and it cannot be found among his possessions, it’s presumed that he destroyed/revoked it – even if a photocopy is found in his possessions. The burden of proving that the photocopy of the Will is really what the deceased person wanted is VERY high. Read that as “cha-ching, cha-ching” into all the lawyers’ pockets.

If no original Will can be located, then the probate proceeds as if the deceased person had no Will, and Florida’s laws regarding who can serve as a Personal Representative/Executor and who gets what and how much control. That may or may not be what the deceased person or his family wanted.

So, check right this minute to see where your original Will is. If it’s being held at an attorney’s office and you haven’t spoken with that lawyer in 10 years, you may want to call and request to pick up your original Will from them, and then keep it with the rest of your estate planning documents. Just about every week I get an email from the Sarasota Bar saying that “lawyer BBBB is looking for the original Will for XXXX.” Don’t be XXXX.

Other articles you may find interesting:

Probate Even When There’s a Trust

Durable Power of Attorney: What You Need to Know

Ready to make sure everything’s in order for your loved ones in the event you become incapacitated or die? Give Manasota Elder Law a call at 941-444-5958. We’ll help you determine whether you’re all set, or whether there are still some things that need to be done to protect what’s most important to you … your family.

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You want to make sure someone will love and care for your dog, horse, or parrot when you can’t.

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