Do You Need the Original Will to Open Probate in Florida?
If you've lost a parent, spouse, or other loved one and you're getting ready to open a probate case in Florida, you've probably asked yourself: does it have to be the original will, or will a copy work?
The short answer is yes, technically, you need the original. Here's why that rule exists, what happens if the original can't be found, and what happens to the original once it's been filed with the court.
The Florida Probate Code Requires the Original
Florida law requires that the original last will and testament be deposited with the clerk of court in the county where the probate administration will be opened. A photocopy, a scanned PDF, or a stack of unsigned drafts won't satisfy this requirement on their own.
Years ago, it was fairly common for the attorney who prepared a client's estate planning documents to keep the originals in a firm safe, sending the client home with copies for their records. That practice has become far less common. Today, most people leave a signing appointment with the original will, the original trust, and any other original estate planning documents in hand.
That shift makes it especially important to keep track of where your original will is kept, and just as important to make sure the people you trust, especially whoever you've named as your personal representative, know exactly where to find it when the time comes.
Why the Original Matters So Much
One of the main ways a person can revoke a will is by physically destroying it. Because of that, the court can't simply assume a missing original was lost, misplaced, or left in a filing cabinet somewhere. Without the original in hand, a judge has no way to rule out the possibility that the person destroyed it on purpose, which would mean it was intentionally revoked.
If the original truly cannot be located, admitting the will to probate becomes a much heavier lift. It typically requires a court hearing, witness testimony, and evidence establishing that, to the best of everyone's knowledge, the will was never revoked. That process takes time, costs money, and adds stress to a situation that's already difficult for a grieving family.
Keeping the original safe, and making sure your loved ones know where it lives, is one of the simplest things you can do to spare your family that extra burden.
Will You Get the Original Back After Probate?
This is a question that comes up constantly from families going through probate: once the original will has been filed with the clerk, will they get it back?
The answer is no. Once the original is deposited with the clerk in any Florida county, the clerk maintains it on file for 20 years, and keeps a record that it was submitted well beyond that. In many ways, that's a good thing. It means the document is stored securely, and if the probate ever needs to be reopened, say, because additional assets are discovered later, the original is already exactly where it needs to be.
What If Your Loved One Owned Property in Another State?
Sometimes a second probate needs to be opened in a different state entirely. This typically happens when someone lived in Florida but owned real property somewhere else. In that situation, the Florida clerk holding the original will can issue exemplified copies of the will to send to the court in the other state. Those exemplified copies are generally sufficient to get the will admitted to probate there as well, so there's no need to retrieve the Florida original for that purpose.
Bottom Line: You Won't Need It Back, and That's Okay
Once a will has served its purpose in a Florida probate proceeding, there's really no other reason a family would need the original back. The court clerk is in the best position to serve as the long-term custodian of the document, in case the estate ever needs to return to probate down the road.
The real takeaway here is this: keep up with your original will while you're living. Make sure your personal representative knows exactly where to find it. Once it's deposited with the clerk after you pass, you'll never have to worry about tracking it down again. It stays safely with the court.
Have Questions About Your Estate Plan or an Open Probate Case?
Every family's situation is different, and small details, like where your original will is kept, can make a big difference for the people you leave behind. Jason Neufeld and the team at Elder Needs Law are here to help Florida families put a plan in place and walk through the probate process when the time comes.
Visit us at elderneedslaw.com or medicaidplanninglawyer.com to learn more about how we can help, and check out Jason Neufeld's book, Medicaid: Use Some of Your Assets to Pay for Long-Term Care Expenses, available now on Amazon.
