Probate is a court-supervised process applied in cases when someone dies owning assets solely in his or her name. During probate, the court will determine the validity of the decedent’s will and oversee the distribution of his or her assets to the rightful heirs and beneficiaries.
Is there a preset time limit to file for probate in Florida upon someone’s death? Keep reading to find out.
How Long Do You Have to File Probate After Death? – The Verdict
Florida Statutes §732.901 (1) establish 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.”
Florida Statutes §732.901 (2) adds that “upon petition and notice, the custodian of any will may be compelled to produce and deposit the will.”
Hence, “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.”
Although Florida law requires wills to be filed with a court upon the testator’s death, there is no explicit requirement that the custodian of the will must file for probate. Also, there is no specific time limit within which an interested person may file a probate petition.
In Florida, a petition for probate may be filed with a court at any time upon the decedent’s passing.
According to Florida Statutes §732.901 (4), upon receipt of the will, “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 (…).”
Additionally, “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.”
Is it Mandatory to Probate a Will in Florida?
To identify whether a will should be probated, one should consider several factors, such as the value of the decedent’s estate subject to probate, the existence of estate planning tools (e.g., trusts), and the number of exempt assets that comprise the estate.
Depending on the case, probate may not even be necessary. For example, if the decedent’s estate is particularly small, it might qualify for disposition of property without administration.
Another case in which it may not be interesting for a beneficiary to file for probate is when the decedent’s debts outweigh the value of the decedent’s estate. Even if the decedent died owing money to creditors, a beneficiary is not obligated to file for probate only to pay the creditors.
In such a case, a feasible strategy would be filing for probate after the expiration of the period allowed for creditors’ claims. This way, it might be possible to preclude creditors from claiming the decedent’s remaining assets to satisfy an outstanding debt.