Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
In Florida, some real property interests transfer automatically at death without probate, while others require a formal probate administration under Florida’s Probate Code (Chapter 733, Florida Statutes). Understanding the difference helps you plan effectively.
1. Transfers by Operation of Law
- Tenancy by the Entirety: Property owned by a married couple in this form passes automatically to the surviving spouse at death. No probate is required.
- Joint Tenancy with Right of Survivorship: Co-owners hold equal shares; when one dies, their interest passes to the other co-owners by operation of law.
- Homestead Exemption: Primary residence protection under Article X, Section 4 of the Florida Constitution ensures certain homestead property passes to a surviving spouse or minor children outside probate.
- Transfer on Death Deed (TODD): Florida Statute 732.703 allows a property owner to file a revocable deed designating a beneficiary. The deed takes effect only upon the owner’s death and bypasses probate. Fla. Stat. § 732.703.
2. Why You Must Probate the Will
A will controls only those assets held in the decedent’s name at death without any automatic transfer mechanism:
- Individually Titled Assets: Real property titled solely in the decedent’s name and not covered by a TODD must go through probate so the court can validate the will and transfer title to the beneficiaries named in the will.
- Creditor Claims: Probate allows creditors to file claims against the estate under Fla. Stat. Chapter 733, ensuring valid debts are paid.
- Clear Title: A probate court order (letters testamentary) provides legal authority to the personal representative to sell or transfer estate assets.
- Non-Probate Assets: Beneficiary-designated accounts, life insurance, and retirement plans pass outside of probate when a valid beneficiary designation exists. Anything else in the estate requires probate to distribute under the will.
In short, only property with an automatic transfer mechanism—like tenancy by the entirety, joint tenancy with right of survivorship, homestead, or a valid TODD—avoids probate. All other real property titled solely in the decedent’s name must go through probate under the Florida Probate Code to effectuate distribution per the will.
Helpful Hints
- Review your property titles and deeds to see if you already hold survivorship interests.
- Consider a Transfer on Death Deed for property you own individually to avoid probate.
- Update beneficiary designations on financial accounts to ensure they pass outside of probate.
- Keep wills and TODDs in a safe, accessible place and inform trusted individuals of their location.
- Consult a qualified probate attorney for guidance on estate administration and to ensure compliance with Florida statutes.
- Plan ahead with trusts if you want to avoid probate for a broader range of assets.