Just as in the case of
Smokey Susan, I encounter many clients initially because someone else claims to have the last Will of a recently deceased which the client believes impacts their interests one way or the other. Under
Florida law, if you are the custodian of the original Will of an individual, you are required to deposit the original Will with the clerk of the court in the county where the deceased last resided, within 10 days of your notice of the death. Note that the time is measured from notice of the death to the custodian, not from the date of death.
Most people are totally unaware that this law exists. Many people choose to ignore the law, not always for nefarious purposes. I have many clients who choose not to deposit their deceased's Will because we have determined that there is no need for probate and not filing the Will keeps the terms totally private. The only downside to this course of action is if the Will is lost and a subsequent probate is needed then we are either left with the expensive task of proving a copy of the Will or in the worst case scenario, a decedent who is rendered intestate. Most people are willing to take that risk, either for privacy concerns or out of sentimentality.
Some people refuse to provide a copy of the Will, or deposit the original with the clerk for the wrong reasons. Most of the justifications for not depositing the Will with the clerk are just rationalizations which can be summed up in one word: Greed. Unfortunately, the old estate planning adage that "blood is thicker than water, but money is thicker than blood" is true.
When a party having the original Will refuses to deposit it with the clerk, or even provide a copy to my client, I make a demand for compliance with the statute by letter and serve it by certified mail, return receipt requested. I usually set a 10 day deadline, tracking the notice provision of the statute. Strictly speaking, the 10 day time period is not required nor is the demand letter. But in practical terms, you need to show the court that you gave the custodian a chance to comply with the statute. Otherwise, the first thing the custodian will claim is "I didn't know about the death" or "I didn't know about the statute."
The statute authorizes an action to compel production of the Will and after notice, for an award of attorney's fees and costs
and damages associated with the failure to produce the Will. Another reason to make the formal demand first is that even though the statute only requires petition and notice, in my experience in almost every situation like this, the court wants to see that this isn't the first opportunity the opposing party had to comply. So, I would never walk into court after the opposing party produced the Will and expect an automatic award of attorney's fees and costs unless I could show the "pre-suit" demand had been made. Only in a situation where my client is going to suffer immediate harm due to a failure to produce the Will would I even consider foregoing the pre-suit demand. Even then, I would try to give at least a 24 hour demand first. As far as damages go, there are no reported cases on the topic and I would not expect to receive such an award absent really egregious circumstances, or some very clear cut and unattenuated damages.
The way this really works is I send the letter and 99% of the time, the person takes the Will to the courthouse and files it with the clerk from whom I then obtain a certified copy. In 19 years, I've only once had to actually file an action to compel production of the Will and I did it by filing a petition for administration as if the decedent was intestate and adding allegations regarding our demand and her failure to act. Then I filed a separate motion in the probate to compel her to produce the Will. Unbelievably, she still failed to produce the Will. The court entered a second order, held her in contempt, and assessed attorney's fees and costs against her. Only then did she produce the Will.
The litigant in that probate tried every shady tactic out there to cut her nephew out of his one-half share of the estate. She even tried to argue that jurisdiction was in Alabama, and that's why she did not have to produce the Will while at the same time alleging that the deceased was the owner of
homestead property in Florida. Since you cannot own a homestead in Florida and be a non-resident, this was the most ridiculous argument of all.
So, the take away from this post should be that if you have possession of a Florida resident's original Will, after they die and you know about it, you need to take it to the courthouse in the county in which they resided. If you do not know about their death, once you receive a formal demand under the statute to produce the Will, produce it! No harm, no foul. If you fail to act after notice and demand, eventually, you are going to have to pay someone's attorney's fees for taking you to court and that never ends well. There is even the possibility of a damage award so the best course of action is to file the Will as soon as you know the testator/testatrix has died.
If you are on the other end of the equation, ask nicely first, then make a formal demand, then file the probate and a motion to compel. If there are extenuating circumstances where you will suffer specific harm due to the failure to act, make those known to the custodian at every opportunity in order to strengthen your case for damages down the road.
Cheers everyone, it's the Weekend!
Julie
Copyright 2013 Julie Ann Sombathy All Rights Reserved
