Probating Florida Real Estate

When do you need to probate real estate in Florida? For the answer, look to the deed, as the answer depends on the type of ownership interest in the property. This article describes the different ownership interests in Florida real estate and under what circumstances probate is necessary.

Tenancy by the Entireties

This is a form of joint ownership that is exclusively available to married couples. Both spouses have equal ownership and control over the property. One key feature of tenancy by the entireties is that neither spouse can sell or transfer their ownership interest in the property without the consent of the other spouse. Additionally, upon the death of one spouse, their share automatically transfers to the surviving spouse. The deed should contain the words, tenancy by the entireties or the marital status of the owners of the property. Probate is not necessary in this case.

Joint Tenancy with Rights of Survivorship

This is when two or more individuals own the property together, with equal shares. Florida Statute 689.15 requires a deed to include the words, joint tenancy with rights of survivorship to create this type of ownership interest in real property. Without that language, ownership is considered a tenancy-in-common. An owner of a joint tenancy can make a lifetime transfer of their interest, but it terminates the joint tenancy with rights of survivorship. If one owner of a joint tenancy with rights of survivorship dies, their share automatically transfers to the remaining surviving owner(s). In this case, probate is unnecessary.

Tenancy in Common

This is when two or more individuals own the property together, but each owner can have a different percentage of ownership. One owner of the property can sell or transfer his or her interest without the other owner’s permission. Additionally, if one owner dies, their share passes on to their heirs or beneficiaries, rather than automatically transferring to the remaining owner(s). Florida Statute 689.15 provides that if a deed fails to describe the nature of the ownership as between the owners of the property (i.e., tenancy by the entireties, joint tenancy with rights of survivorship, etc.), the ownership is presumed to be a tenancy-in-common. A tenancy-in-common ownership is also created at the time of a divorce if the two spouses share an ownership interest in real estate as part of the divorce. In the case of tenancy-in-common ownership, probate is necessary.

Life Estate Ownership

This is when an individual owns a property for the duration of their lifetime (called a life tenant), but the property transfers to another owner (called a remainderman) upon the death of the life tenant. Typically, the deed provides to whom the property will transfer upon the death of the life tenant. A life tenant typically retains the sole right to terminate the life estate ownership, divesting the remainderman any interest in the property. Upon the death of the life tenant, no probate is necessary as ownership automatically transfers to the remainderman. However, if the remainderman dies before the life tenant, and the life tenant fails to terminate his or her life estate ownership, then probate may be necessary to transfer the remainderman’s interest to his or her heirs.

Trust Ownership

This is when real property is owned by a trust, with a designated trustee managing the property for the benefit of the trust's beneficiaries. Typically, probate is not required in this case. However, in some cases, a title company may require a court order from the probate court before completing a sale of the property.

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Knowing when to probate real estate can be confusing. If you have any questions about probating Florida real estate, we welcome your call.