Fort Myers, FL asked in Estate Planning and Probate for Florida

Q: My father died 1/21. Starting 4/1-I have legal services as a benefit from my co. Can I wait until then to begin probate?

My father had a revocable living trust and a pour over will. My sister and I are only beneficiaries. Noone is going to contest anything. I know Florida law says "10 days" after death to file a will, but there are no legal consequences of missing this deadline, correct?

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2 Lawyer Answers
Anwar Elias Hadeed
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A: I'm sorry for your loss.

You're correct that Florida law requires a will to be filed with the court within 10 days of the person’s passing (Florida Statute § 732.901). However, there are no direct penalties for missing this deadline—courts typically accept late filings as long as there’s no fraudulent intent or harm caused by the delay.

Since your father had a revocable living trust with a pour-over will, most of his assets were likely placed into the trust, meaning probate may be minimal or even unnecessary. However, if any assets were left outside the trust and need to go through probate, you’ll eventually need to initiate the process.

If there’s no urgency (e.g., no creditors pressing claims, no financial hardships), you can likely wait until April to start probate when your legal benefits begin. That said, it might be wise to at least consult with an attorney now to confirm that waiting won’t create any unexpected complications.

I offer free consultations at Hadeed Legal, and I’d be happy to discuss your situation and help you understand your options. Feel free to reach out if you’d like to go over the next steps.

Marc J. Soss agrees with this answer

A: I am very sorry for your loss on the passing of your father, please accept my condolences for you and your family at this difficult time.

While Florida Statute require the Will to be submitted to the clerk of the court within 10 days, nobody holds you to this standard and hardly anyone ever does it. It may be useful to submit so that it is on file and make a copy, but that is up to you. It has to go to the clerk of the court in the county where your dad was a resident and had his homestead, etc.

I will note, company legal programs tend to be relatively basic and usually limited with what they will do, provide and cover and what they can help with, I doubt that many company legal programs will cover the specialized are of probate based on my experience via their prepaid legal services as probate is far more complicated than that and probate in Florida falls under very specialized rules, so be aware of this issue and possibility as well.

If the Trust was properly drafted, executed and funded, then the vast majority of your assets should be in the name of the Trust and the Trustee should just be able to take over and handle the assets in the Trust.

Any assets not put into the name of the Trust or that are in your father's name alone may need to be probated if if there is no pay on death or transfer on death designation, or a jointly owned account or transfers via the terms of the deed or similar.

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