Living Trust
What happens if a Will is not filed in Florida?

What happens if a Will is not filed in Florida?


Jennifer Mcgee


Updated on  

March 17, 2023

7 Mins


Filing of a Will is also known as filing of Probate. If a Will is not filed in Florida, the probate court will not distribute the estate’s assets and a person may have to deal with many other consequences. 

What is a Probate

Probate is a formal Legal process, more specifically,  a Judicial process whereby the Will of a person who has died is recognized by a court of law. Executors or Personal representatives are then appointed by the court to distribute the property/assets among the beneficiaries. Everything is done here under the supervision of the Court of Law and this process requires a lot of patience, time, and money.  

This involves organizing the money, assets, and possessions of the dead person and after paying any taxes and debts, they are distributed as per the instructions in the Will.

If you have a Will, your Executor will not readily have the authority to administer or distribute your estate among your beneficiaries, your executor will first need to apply in the court to start the probate process. Once the process is completed, then only the Executor will have the right to distribute your estate as per your wishes specified in the Will. 

What happens if a Will is not filed in Florida?

Following are the 7 consequences of failing to Probate a Will in Florida:

1. Personal Liability against the Personal Representative.

The personal representative of the Executor is responsible to file the Will and then he/she is appointed by the court to distribute the property/assets among the beneficiaries. If failure to file the Will results in loss to the beneficiaries, the personal representative will be personally liable.

2. Disputes among loved ones.

Failing to file for probate will lead to disagreements among family members, and there may be formal legal disputes as well. Heirs and beneficiaries will never be able to know about the assets they are entitled to receive.

3. Titled Assets will not be Transferred.

Titled assets transfer (such as houses, cars, and boats) require the initiation of probate. If probate will not be filed, these assets will remain in the name of the deceased.

4. Creditors' claims against Estate Assets will not be eliminated.

Probate provides finality to creditor claims by the personal representative providing adequate notice and handles all valid claims appropriately. Upon the closure of Probate, creditors cannot claim from the estate or the estate’s beneficiaries. If the estate remains open, creditors can continue to seek payment for debts against the deceased.

5. Heirs and Beneficiaries will never know which Assets they are entitled to receive.

Will provides instructions for how the decedent’s assets are to be distributed among the beneficiaries and heirs. If Will is not filed, there will always be uncertainty among them which may lead to disputes and disagreements also.

6. Taxes Will Not Be Paid.

It is not possible to determine what taxes are owed by the Estate unless the Will is filed in Court. Failure to pay the Estate taxes if any and all other applicable taxes can lead to interest, fines, and other penalties. 

What happens if a Will is not filed in Florida

What is Disposition Without Administration in Florida?

Disposition Without Administration is a quick and inexpensive informal probate process in Florida, designed for estates of minimal value. It is used to request the release of assets of the deceased to the person who paid the funeral and/or final medical bills.

Florida Statute §735.301 deals with this process of Disposition Without Administration. 

The following assets are exempted under Disposition Without Administration.

  1. Household goods or furnishings up to $20,000 in value.
  2. 2 personal motor vehicles of the deceased.
  3. Any qualified tuition plans under Section 529 of the Internal Revenue Code.
  4. Personal property up to $1,000 in value.
  5. The property whose value doesn't exceed what's owed in the final expenses of the last 60 days of the last illness.

Note - Any Real property is not covered under Disposition Without Administration.

If the deceased person died intestate, the following must be fulfilled to qualify for disposition without administration:

  • The deceased person must be dead for more than 1 year.
  • There must be no probate pending in Florida.

Disposition Without Administration does not require the help of an attorney to file it. You may find the relevant forms to file this in the country courthouses and the filing fees is also minimal. 

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Frequently Asked Questions

How long does a Probate take?

Probate usually takes around a few months to a few years depending upon your circumstances like whether you have a Will or not. Whether your Estate is small or large, etc.

What if someone dies without a Will?

The intestacy rules will say who can apply to administer the estate instead.

Does Jointly titled property avoid probate?

Yes. Jointly titled property(with Survivor’s Rights) will automatically go to a Survivor after you pass.

Does Living Trust avoid probate?

Yes. A Revocable Living Trust allows a person to avoid probate.

Does Life insurance policies pass property outside of probate.?

The beneficiary of life insurance policies will receive the death benefit directly without probate.
Jennifer Mcgee
Parent to five young children. Estate Planning, Probate, and Family Law Attorney. Volunteer with Victim’s Advocates in the local sheriff's department...
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Jennifer Mcgree
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