What Happens if You Do Not Probate a Will in Florida?

What Happens if You Do Not Probate a Will in Florida?

Almost everyone who calls me about this has merged two different questions into one worry, and separating them answers most of it.

Depositing the will is a duty. It runs on a ten-day clock, it belongs to whoever is holding the document, and it applies whether or not any probate follows.

Administering the estate is a decision. It is answered by what the decedent owned in their sole name with nobody named to receive it, and for a great many Florida families the honest answer is that no administration is needed.

Practice pointer. I answer these in that order every time, because a family that has decided there is nothing to probate frequently concludes there is nothing to file either, and those are different conclusions with different consequences.

Filing the Will Is Not Optional

The custodian of a will must deposit it with the clerk of the court having venue of the estate within 10 days after receiving information that the testator is dead, and must give the clerk the date of death or the last four digits of the decedent's social security number.

Three things about that duty catch people out.

The duty belongs to whoever is holding the will, not to the family as a group and not to the person who expects to inherit. A spouse with the will in a safe, an adult child given it for keeping, and the attorney who drafted it are each the custodian while it is in their hands.

The duty applies whether or not anyone opens a probate. The clerk retains and preserves the original in its original form for at least twenty years, whether or not the will is ever admitted to probate and whether or not proceedings are terminated.

A penalty backs it up, and I have seen it imposed. On petition and notice a custodian can be compelled to produce and deposit the will, and Florida law directs that all costs, damages and a reasonable attorney's fee be adjudged against a delinquent custodian where the court finds no just or reasonable cause for the failure.

Avoid holding a will while a family decides what to do. The clock runs from information about the death rather than from any meeting, and the person exposed is usually somebody who was only trying to keep the document safe.

An Unprobated Will Moves Nothing

Florida law is direct about what an unadmitted will is worth for proving ownership, and I quote it to clients because the answer sounds too blunt to be real. Until admitted to probate in this state, or in the state where the decedent was domiciled, the will is ineffective to prove title to, or the right to possession of, the testator's property.

So a will sitting in a drawer, or even deposited with the clerk and never admitted, transfers nothing. A bank will not release an account on it. A title company will not insure a sale on it. The property stays in a dead person's name, and every year that passes makes assembling the proof harder.

Does Every Will Have to Go Through Probate?

No, and the reason has nothing to do with the will itself. What I ask for is what the decedent owned in their sole name with nobody named to receive it, because that list decides it.

These pass without any probate.

• Accounts with a payable on death or transfer on death designation, covered on payable on death accounts.
• Retirement accounts and life insurance with a living named beneficiary.
• Property held jointly with rights of survivorship, or by the entireties between spouses.
• Assets already inside a funded revocable trust.
• Real property passing under a lady bird deed.
• Protected homestead, because the Florida Constitution provides that the exemption inures to the surviving spouse or heirs of the owner.

Whatever is left over is what probate exists to move. In many Florida estates that list is short, and in some it is empty.

What Actually Goes Wrong

Four specific failures, in the order I usually see them arrive at my office.

Doing nothing has a cost that compounds quietly. Title stays in a dead person's name, so the house cannot be sold, refinanced or insured properly, and fixing it later usually means a personal representative's deed issued out of an administration somebody finally opens. If the estate was closed and an asset surfaced afterwards, that is a different problem covered in reopening a closed probate, and either way the bill is the one in the cost calculator.

The second one is the expensive one. Families who decide to wait are usually thinking about the two-year bar, and the two-year bar is exactly the provision that leaves a recorded mortgage untouched.

Nobody Told Us to Do Anything. Are We in Trouble?

People ask me some version of this months after a death, and the honest answer is that the exposure depends on who was holding the will. The duty to deposit belongs to the custodian, so a family that never had the document is in a different position from the person who has had it in a drawer since the funeral. What I want first is the date somebody learned of the death and the name of whoever has the original, and then we deposit it. In most of these calls nothing has gone irreversibly wrong and the fix starts with one filing.

How Long Do You Have to File for Probate?

Florida sets no general deadline for opening an administration, which surprises almost everyone. Two clocks make waiting expensive anyway.

The creditor claims period never starts until a notice to creditors is published. An estate nobody opens is an estate whose claims window has not begun, so the exposure sits open indefinitely rather than expiring quietly.

The two-year bar does run on its own. Two years after the date of death, neither the estate, the personal representative if any, nor the beneficiaries are liable for a claim against the decedent, whether or not letters of administration have been issued. That provision helps, and it does nothing about secured debt.

One thing genuinely gets easier with time. Where the decedent died more than two years before the filing, summary administration is available regardless of the value of the estate, which is a materially shorter route than formal administration. The three routes are on the Florida probate routes.

What to Do Instead of Nothing

Three steps, and I would do the first one today because it is not a decision.

Deposit the original will with the clerk in the county where the decedent was domiciled. That duty is already running and it does not wait for a family to agree on anything.

List what was in the sole name with nobody named as beneficiary. Bank accounts, the car title, the deed to the house, any brokerage account. That list decides everything that follows, and it is usually shorter than families expect.

Pick the route. Nothing in the sole name may mean no administration is needed at all. A small intestate estate may fit disposition without administration, at $20,000 as of July 1, 2026. Estates up to $150,000, and any estate where the death was more than two years ago, may fit summary administration. Everything else is formal administration, which begins with letters of administration.

Frequently Asked Questions

Common Situations

The house discovered at closing. A family in Marion County lived in their mother's home for six years after she died without opening anything. The problem surfaced when they tried to sell, because the deed was still in her name and an unadmitted will proves no title. The administration they avoided in year one was the administration they had to run in year seven, with two of the three witnesses gone.

The waiting that cost the equity. A Pinellas family decided to wait out the two-year claim bar on a house with a mortgage on it. The unsecured claims did expire. The mortgage did not, because the bar leaves a recorded lien and the right to foreclose alone, and two more years of interest, taxes and insurance came out of what the children eventually received.

Sources of Law

• Fla. Stat. §732.901(1) (the custodian must deposit the will with the clerk of the court having venue within 10 days after receiving information that the testator is dead, supplying the date of death or the last four digits of the social security number); (2) (the custodian may be compelled on petition and notice, and all costs, damages and a reasonable attorney's fee shall be adjudged to the petitioner against a delinquent custodian where the court finds no just or reasonable cause); (4) (the clerk retains and preserves the original in its original form for at least 20 years, whether or not the will is admitted to probate or the proceedings are terminated).
• Fla. Stat. §733.103(1) (until admitted to probate in this state or in the state where the decedent was domiciled, the will is ineffective to prove title to, or the right to possession of, property of the testator).
• Fla. Stat. §733.710(1) (2 years after death, neither the estate, the personal representative if any, nor the beneficiaries are liable for a claim or cause of action against the decedent, whether or not letters of administration have been issued); (3) (the section does not affect the lien of any duly recorded mortgage or security interest or the right to foreclose and enforce it). Fla. Stat. §733.702(1) (claims barred unless filed by the later of 3 months after the first publication of the notice to creditors or 30 days after service on a served creditor).
• Laws of Fla. ch. 2026-57 (CS/HB 1337), effective July 1, 2026: Fla. Stat. §735.201(2) summary administration value cap raised from $75,000 to $150,000, and §735.304(1) disposition without administration for intestate estates raised from $10,000 to $20,000. Summary administration is also available regardless of value where the decedent died more than 2 years before the filing.
• Art. X, §4(b), Fla. Const. (the homestead exemptions inure to the surviving spouse or heirs of the owner). Retrieved from flsenate.gov 2026-09-07.
• ⚠ Whether an administration is needed is a fact question. It depends on titling, beneficiary designations, the value of what remains and the date of death. Nothing here predicts how any estate will be handled. Confirm your own position before deciding to do nothing.
• Advertised fees are honored for 90 days from the posted date. Government costs, including filing fees, publication, recording and certified copies, are additional and passed through at cost. General information about Florida law, not legal advice.

What I See in These Files

In 14 years of law practice the estates that cost the most are the ones nobody opened. I have a few take-home points about why doing nothing feels reasonable at the time.

The first is that nothing bad happens immediately. No letter arrives, no deadline is announced, and the family reasonably concludes the matter is closed. The consequence surfaces years later at a closing, when a buyer's title insurer asks how a dead person is conveying a house, and by then the witnesses have moved and the original will has usually gone missing.

The second is the two-year bar, which gets read as permission to wait. It ends unsecured claims and it leaves a recorded mortgage completely alone, along with the right to foreclose. I also litigate probate disputes in court, work most planning attorneys never do, and I have watched families wait out a claim period while the only real debt kept growing against the only real asset.

Avoid letting the will sit while everyone decides. Depositing it costs nothing, takes the custodian out of any exposure, and leaves every other decision exactly where it was.

Updated on September 14, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law, not legal advice, and no attorney-client relationship is created. What your estate needs depends on your facts, which we confirm at a free consult.