Most people do not discuss their finances or the contents of their will, even with family members. The will is usually a private document that is kept hidden away in a bank box, with a lawyer, with the executor of the will, or left with a trusted friend. The reason is that the person making the will (the testator) wants to keep the contents of the will a secret to prevent any infighting/arguments among the beneficiaries before his or her death. As long as the testator is alive, the contents of the will remain private and confidential. Even though (according to Florida law) the will has to be signed in front of at least two witnesses, these individuals usually have no idea about the contents. They are only attesting to one fact: that the person making the will is the one signing it. So, does a will need to be recorded in Florida?
Recording the Will
- After the death of the testator, things change. According to Florida law, the individual who is in possession of the will must file or register it with the local court clerk within 10 days of death.
- Only the original will can be filed. A photocopy or a digital imprint of the will is not acceptable.
- The person must provide the name of the decedent and the last four digits of his/her social security number.
- The person registering the will has to provide a photo ID and contact number.
Do wills have to be recorded in Florida? This process of filing a will with the court is what it means when lawyers say the will is recorded. Once the will is registered with the local court, then it becomes a public record. However, it is important to note that when a will is a public record, this does not mean that the local county clerk will post it on the internet for everyone to see. Florida courts have a rule that, even though documents like a will have been filed, they are not directly available for the public to see. The only way to access the will is to show up at the local county clerk’s office and ask to see the will or ask for a copy of the will. In most cases, there is usually a small administrative fee for photocopying the will.
CAN A WILL BE FILED WHILE THE TESTATOR IS STILL ALIVE?
Does a will need to be recorded in Florida? It may sound a lot easier for the testator to just file the will with the local county clerk while still alive, but estate lawyers do not recommend it for several reasons:
- If you want the contents of the will to remain private, you should not file it while alive. You may have distributed your estate unevenly among the beneficiaries, according to your wishes, but you do not want them to know about it yet to avoid friction. Plus, it may also reveal your plans after the funeral, such as a burial or cremation, and you may have not wanted to divulge this information to anyone. The reason is that once filed, anyone can access the will via the county clerk’s office, and all privacy is lost.
- If you suddenly decide to amend your will or make changes, once you have filed it with the court, then it becomes a real challenge and a bureaucratic hassle to make alterations. Also, if you decide to cancel the original will, which would be with the court, a second will could create confusion. To avoid these issues, it is best not to file the will while you are alive.
WHAT IF THE EXECUTOR OF THE WILL DOES NOT FILE THE WILL WITHIN 10 DAYS?
Do wills have to be recorded in Florida? Florida Law states that the executor of the will must file the will within 10 days of the death of the decedent (testator). However, there are some cases where the executor may have a genuine reason for being late, such as being ill, admitted to a hospital, involved in a car accident, developing memory loss and confusion, and so on. In such cases, the courts will not penalize the executor, but if the filing of the will is delayed more than 10 days intentionally, he or she can be monetarily penalized by the court. The executor may have to pay for all the court costs, administrative fees, and sometimes a small monetary fine.
HOW LONG IS THE WILL PRESERVED BY THE COURT?
Once the clerk receives the original will, it is usually stored in its original form for a minimum of 20 years. During probate, the original will has to be reproduced during the proceedings, but, at all times, the original will has to be preserved for a minimum of two decades.
IS A TRUST RECORDED IN FLORIDA?
Unlike a will that has to be registered within 10 days after the testator’s death, the same rules don’t apply to a trust. Very similar to a will, a trust permits the testator to select his beneficiaries and determine who gets what after death. In Florida, however, a trust is not usually a matter for the public.
When you make a trust, you name a successor trustee to carry out your wishes and transfer the state/property to him or her. While you are alive, you are the trustee, but, after your death, the successor trustee will take over and carry out your wishes as stated in the trust. After your death, the trustee owns the estate/property, and this does not go through probate. Establishing a trust enables you to keep some level of privacy about your estate and beneficiaries. One simply can’t show up at the local county clerk’s office and ask for a copy of the trust. Since the trustee is not mandated to file the trust with the local court after your death, there may not be a copy. Only when there is litigation involving the trust, then parts of the trust may become public. When this happens, the trustee, according to the law, is mandated to permit the beneficiaries to see the trust and what is written in it.
CONCLUSION
Does a will need to be recorded in Florida? If you are considering making a will, speak to an estate lawyer first for advice. There are many nuances and legal rules to abide by and an estate lawyer can guide you through the process. Call Elder Law, P.A. at 1-561-588-7512 to have all your questions answered. The lawyers at Elder Law are experienced in the needs of seniors and are passionate about helping you make the best plans for the future for you and your loved ones.
