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Ways to Hold Real Estate Title for Florida Probate Purpose

There are four different ways to hold title in real property in Florida: (1) tenants in common; (2) joint tenancy; (3) joint tenants with right of survivorship; and (4) tenancy by the entireties.

If you own Florida real estate with more than one person, it is likely that you don’t know how the title is held or its implication should one of you were to pass away. Let’s be honest, last thing we have in mind when we buy a home is how  title ownership will affect our rights. 

In my experience I seen married couples purchase real property and both spouses are listed under the mortgage and only one under the real estate property title. The fact is that most people are not educated in this subject and some people never even look at their property title during their lifetime.

This article will provide you some guidance into the different ways to hold real estate title in Florida and how it can affect you in Florida probate court when you pass way.

Tenants in Common Florida

When if you are in the real estate title by yourself or there is more than one person in the real estate title in Florida, the default classification is that of a tenancy in common.

Typically, the title might read John and Mary, as tenants in common. If the title only lists John and Mary’s name by itself, without any other classification then it will also be presumed to be a tenancy in common.

Unless otherwise specified, tenants in common have equal ownership percentage in the real property. However, this can vary by agreement between you and the other tenants in common.

What happens when you or another co-tenant passes away?

Since there is no survivorship feature in the tenancy in common, at the death of one of the tenants in common, his or her interest is able to be inherited by the heirs of tenant who passed away.

You also may create a Florida last will and testament and designate who you want to inherit the real property, subject to the Homestead limitations outlined below. Unless that interest is held in a Florida revocable trust, your heirs or beneficiary will have to open an administration in Florida probate court to change the title of the real property to reflect the heirs.

Your heirs or beneficiaries under your last will and testament will need to hire a probate attorney to assist them with the probate administration.

The negatives of the property interest passing through probate is that the Florida probate system is a public process, therefore anyone can request access to the information. In addition, the probate attorney will take a small percentage out of the assets in the administration, not to count the stress and length of administration.

When does it make sense to own property as a tenant in common?

If you investing in real property with one or more persons, then owning property as a tenant in common is a wise choice. If you pass away then your heirs can inherit that real property. 

In addition, it might make sense for married couples to own real property in some circumstances, specially when it is a second or third marriage and there are children from different marriages. This is one way to make sure that your interest in the real property is able to be inherited by your children. See the Florida Homestead limitations below.

Joint Tenancy Florida

A joint tenancy in Florida has all the features of the tenancy in common except that all the joint tenants must have the same equal percentage of interest in the real property.

The joint tenancy also does not avoid Florida probate. At the death of one joint tenant the heirs of the joint tenants or the beneficiaries under the last will and testament are able to inherit the property. If you want to be able to avoid Florida probate court, then the interest must be held as joint tenants with right of survivorship.

Joint Tenancy with Right of Survivorship Florida

A joint tenancy with right of survivorship has all the same features of a joint tenancy with the additional feature that when one joint tenant passes away, his or her interest in the real property will automatically pass to the survivor joint tenants by operational law.

All there is to do is to take the dead certificate of the joint tenant who passed away to the Property Appraisal’s Office in the county where the real property is located. Since a joint tenancy with right of survivorship has a survivorship feature, there will be no need for probate court. 

The main difference between the joint tenancy with right of survivorship and the joint tenancy, and even the tenancy in common is that your heirs or the beneficiaries under your last will and testament will not be able to inherit your property unless they are one of the other joint tenants.

When one joint tenant passes away, the interest in the joint tenant passes automatically to the survivor joint tenants. Although this form of owning title is advantageous for avoiding probate, you must beware that if you want your children to inherit your interest in the property, you must make sure that either they are listed as the other joint tenants or that you are the last survivor of the joint tenants.

This form of holding title is good for individuals who are family members and live in the property together and both contribute to the payment of the property and wish for the other to inherit the property should they were to pass away.

At the death of the last joint tenant, when there is only one owner left, then changes to the Florida property title will need to be done in order to avoid Florida probate court. In this case if there is only one owner, the property will revert to being a tenancy in common.

Tenancy by the Entireties Florida

A tenancy by the entireties has all the same features of a joint tenancy with right of survivorship except that the tenancy by the entireties can only be created by married couples.

Typically, when married couples are listed under the real estate title as “husband and wife” a tenancy by the entireties is presumed. 

At the death of one spouse, the real estate interest passes automatically to the surviving spouse by operation of law similarly to the joint tenancy with right of survivorship.

Similarly to the joint tenancy with right of survivorship, at the death of the first spouse if nothing more is done, then at the death of the surviving spouse Florida probate will need to be done to transfer the title. 

This is an all-to-common situation here in Miami-Dade and throughout Florida. Typically, one spouse passes away due to old age and the surviving spouse fails to do any estate planning to avoid Florida probate court and the children are then left to hire a probate attorney to help them with the probate process.

Florida Homestead Restrictions

In Florida your primary residence is consider to be your Homestead. Florida homestead provides you certain benefits including protection against forced sale and ad valorem tax exemptions.

The Florida Homestead benefits come with certain restrictions. 

If you have spouse and/or minor children, Florida law dictates that you may not transfer your Homestead in a will or a trust. However if you have no minor children, you may transfer your Homestead only to your spouse.

If you have no spouse or minor children, then you may transfer your Homestead to whoever you want. However, the Florida Homestead protection will only inure if you transfer your Homestead to one of the persons listed under the Florida intestacy statute.

If you have minor children one possible way to avoid the Homestead restrictions is to own your Homestead as a joint tenant with right of survivorship or a tenancy by the entireties with your spouse. These exception is based on case law so you should consult an estate planning attorney or a real estate attorney before doing any changes to your real estate title.

The Florida legislature has carved out an exception for these two forms of ownership. See Section 732.401(5) of the Florida Statutes. Keeping mind though that you may not disinherit your spouse in Florida. Absent a spousal waiver your spouse is entitled to the elective share which equals to 30% of all the assets own by you.

Although your Florida Homestead is not considered to be a probate asset, you will need to open a formal administration to have a probate judge declare the real estate property as the homestead of the person that passed away. At that point, title passes automatically to the beneficiaries, so long as it is a valid homestead devise.

Strategies to Avoid Florida Probate Court

The first thing we must analyze is whether the real estate property is your homestead or not. 

If the property is your homestead and you have minor children then there is not much to do, except creating an irrevocable homestead trust. These are complicated and a lot of people are hesitant to transfer their property into an irrevocable trust. Typically, the way these homestead irrevocable trust works is that the property is held under the irrevocable trust until your minor child turns 18 years old. At that point the property will revert back to you. 

If you are married then you will need the consent of your spouse to change the title ownership of the property. Usually the best way to avoid Florida probate court is to create a life enhanced estate deed or more commonly called a “Lady Bird Deed.”

Lady Bird Deed

The first thing we must analyze is whether the real estate property is your homestead or not. 

If the property is your homestead and you have minor children then there is not much to do, except creating an irrevocable homestead trust. These are complicated and a lot of people are hesitant to transfer their property into an irrevocable trust. Typically, the way these homestead irrevocable trust works is that the property is held under the irrevocable trust until your minor child turns 18 years old. At that point the homestead will revert back to you. 

If you are married then you will need the consent of your spouse to change the title ownership of the property. Usually the best way to avoid Florida probate court is to create a life enhanced estate deed or more commonly called a “Lady Bird Deed.”

The Lady Bird Deed allows you to give yourself, and your spouse, if any, a life estate in the homestead. The Lady Bird Deed is special because you reserve the power to sell, rent, mortgage, and even revert the property title back you at any moment. When the life tenants pass away, then the property passes to the beneficiaries you selected under the deed.

The Lady Bird Deed also allows you to maintain the Homestead exception as well as Medicaid benefits.

Revocable Living Trust

If there are no minor children, then one option is to transfer the Homestead to a Revocable Living Trust. If you are married, then your spouse will need to consent as well to the transfer.

The Homestead can be transferred to a joint revocable trust or 50/50 to each of the spouses revocable living trust.

The revocable living trust is also the best way to own real property when the real estate property is not your homestead. If it is not your homestead then it will not have any of the restrictions mentioned above.

The revocable living trust is best combined with an interest in a Limited Liability Company (“LLC”). The LLC provides you asset protection and then the revocable living trust will hold title to the LLC, effectively avoiding probate if you were to pass away.

Conclusion

What is the take away? 

Make sure you look at your deed. Understand how the deed is titled, specially if there are more than one person in the deed.

I will advise you to talk to an estate planning attorney so you can better understand the implications and any possible planning, specially if you want to avoid the time, stress and cost of Florida probate court.

Give me a call or fill the contact form in this page and I will take a look at your deed at no charge. I will mention the implications of not doing anything and what planning can be done to avoid Florida probate court.

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