Understanding Probate and Joint Ownership in Florida: A Comprehensive Guide

Probate Lawyers in Lakeland Florida. We Provide experienced Probate Legal Services in Polk County, Central Florida and the entire State of Florida.

Call 863.250.2990 today to schedule a Free Consultation with our skilled Probate attorneys.

‹ All Posts

February 18, 2025

Probate can feel overwhelming at first glance, especially when the concept of jointly held assets comes into play. In simple terms, probate is a court-supervised process where a deceased person’s affairs are settled: debts are paid, and assets are distributed to heirs or beneficiaries. Yet, not all assets necessarily pass through probate. In Florida, the way property is titled—particularly if it is jointly held—can determine whether it transfers directly to a surviving co-owner or becomes part of the probate estate. This distinction often hinges on the principle of survivorship, which allows property to pass immediately to the surviving co-owner. Understanding how Florida law approaches joint tenancy, tenancy in common, tenancy by the entireties, and special account types like Pay-On-Death (POD) or Transfer-On-Death (TOD) can make all the difference in streamlining the probate process.

When people hear the word “probate,” they often assume it covers every single asset left behind by a decedent. This is a common misconception. Many assets can actually bypass probate if they are held jointly with a right of survivorship or if they have designated beneficiaries. For instance, Florida Statute 655.79 reinstates the common-law presumption of survivorship for multiple-party bank accounts, so if you and someone else share an account that is clearly labeled “payable to the survivor,” that account may not need to go through probate at all. On the other hand, an asset held as a “tenancy in common” (where there is no right of survivorship) typically becomes part of the decedent’s probate estate, subject to administration and distribution among heirs or devisees.

The probate process itself can be broken down into several steps, beginning with filing the will (if it exists) in the appropriate probate court. The court then appoints an executor or personal representative—sometimes called an administrator if there is no will—who is responsible for identifying and valuing all assets, paying off any debts, and ultimately distributing property as prescribed by the will or by Florida law. During this process, expenses such as court fees, attorney fees, and other costs like appraisals or accountant services can add up, so it is wise to plan as thoroughly as possible in advance. Proper organization of documents, thoughtful use of beneficiary designations, and careful consideration of how you hold title to your property can all help reduce both the time and money spent in probate.

One of the most critical elements in Florida’s approach to co-ownership is set out by Florida Statute 689.15. Historically, English common law favored joint tenancies with right of survivorship, meaning if one co-owner died, the surviving co-owner would automatically inherit the entire property. However, F.S. 689.15 reversed that presumption for most types of property, making tenancy in common (where each co-owner’s share goes to their own heirs) the default form of co-ownership unless the document creating the ownership explicitly states otherwise. Exceptions arise in scenarios involving spouses (tenancy by the entireties) and certain types of financial accounts. For instance, if a married couple holds real estate as “husband and wife, as tenants by the entireties,” they each own the entire property together, and upon the death of one spouse, the other inherits automatically without probate. In contrast, if a property is titled to both spouses as “tenants in common,” each spouse owns only a fractional share, which means that the deceased spouse’s share would pass through probate.

Joint ownership can solve a lot of problems but can also create new ones if misunderstandings arise. Consider a situation where a married couple, Tom and Sarah, owned a home as tenants in common, yet they always assumed that if one died, the other would inherit outright. When Tom died, Sarah learned that the home did not, in fact, pass automatically to her but rather had to be included in Tom’s probate estate for distribution to Tom’s children from a previous marriage. This kind of confusion can be avoided by carefully choosing the language on the deed—had the property been properly declared as a joint tenancy with right of survivorship or a tenancy by the entireties, Sarah would have taken the entire interest without probate.

Several key players guide the probate journey. The executor or personal representative oversees the estate, gathering assets, paying claims, and ensuring a smooth transfer of what remains. Beneficiaries and heirs, of course, receive whatever the decedent left to them, while attorneys provide legal counsel to keep the process in line with Florida’s probate code and to resolve any disputes. Trustees also come into play when assets are placed in a trust prior to the owner’s death. Trusts, whether revocable living trusts or otherwise, can help assets avoid probate, since trust property is not typically considered part of the probate estate.

Disputes can arise at any point in the probate process. Frequently, family disagreements stem from unclear wills or confusion about whether an asset was truly joint with a right of survivorship or whether it should pass through probate. In some instances, a beneficiary may feel that another co-owner wrongly withdrew more than their share of a jointly owned account. Under Florida law, co-owners are accountable to each other if one over-withdraws, and a court might intervene to ensure fairness. Delays like these can draw out the probate process, which typically averages a few months for simpler estates but can stretch much longer when conflicts or complex assets are involved.

Fortunately, there are multiple strategies to simplify or avoid probate altogether. Placing assets in a revocable living trust is one of the most popular methods, as the trust’s successor trustee can distribute the assets directly to beneficiaries without court involvement. Using beneficiary designations or POD/TOD accounts (where the asset transfers automatically upon death) also keeps these funds or investments out of the probate arena. Even joint ownership is useful if one’s goal is to allow a surviving co-owner to inherit automatically; however, it must be established properly, with explicit language confirming the right of survivorship. Reviewing these designations regularly is essential, particularly after major life changes like marriage, divorce, or the birth of children.

Imagine a real-life example involving a bank account co-owned by two sisters, Maria and Anna. Their account was labeled “payable to either or survivor,” and it explicitly confirmed a right of survivorship. When Maria passed away, Anna immediately became the sole owner of the account—no need to go through probate. In another case, a man named Jorge owned multiple properties in Florida. By transferring these properties into a revocable living trust, he enabled his successor trustee to manage and distribute the real estate after his death without involving a probate court.

For those looking to protect their loved ones from stress and uncertainty, it is never too early to plan. First, organize your documents: keep a file containing your deed (or deeds), bank statements, retirement account records, and any existing estate planning documents like wills or trusts. Make sure you understand exactly how each asset is titled—whether that is a joint tenancy with right of survivorship, tenancy in common, tenancy by the entireties, or something else entirely. Then, consult with an experienced estate planning attorney who can help you align your goals with Florida’s legal requirements. They may advise you to establish a revocable living trust, change how certain assets are titled, or update beneficiary designations to ensure a smooth transition of your property.

Above all, remember that probate itself is designed to protect both creditors and beneficiaries, ensuring that final bills are paid and that assets go to the rightful recipients. Still, no one wants to see their heirs embroiled in lengthy, expensive court proceedings if it can be avoided. Taking proactive steps—like clarifying your co-ownership arrangements, utilizing POD/TOD designations, or creating a trust—can keep family relationships harmonious and costs manageable.

If you have questions about Florida probate, joint ownership structures, or strategies for simplifying your estate, do not hesitate to reach out to a qualified estate planning attorney. Timely action can save you and your loved ones from many common legal and financial pitfalls. By reviewing how you hold title to each asset and making thoughtful updates when necessary, you ensure that your wishes are followed without unnecessary delays or expenses. Effective planning is your best defense against confusion and conflict, and it can offer peace of mind knowing that your family will be taken care of according to your intentions.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.