Probate and Jointly Held or Beneficiary-Designated Assets in Florida

In Florida, assets that are jointly held with rights of survivorship or that name a living beneficiary generally pass outside of probate and go directly to the surviving owner or named beneficiary. Probate is only required for assets the decedent owned in their sole name with no built-in succession mechanism. The practical question in most Boca Raton estates is not whether probate applies to everything — it almost never does — but which specific assets slipped through the cracks and still need a court to transfer them.

That distinction matters enormously when an estate is heavy on real property. A waterfront condo, a homestead in one spouse’s name, a rental fourplex, or a vacant lot held as tenants in common can each behave very differently at death. Below, an experienced Florida probate perspective on how survivorship and beneficiary designations actually work here — and where they quietly fail.

What “non-probate” really means under Florida law

Florida probate is governed by Chapters 731 through 735 of the Florida Statutes. Probate is the court-supervised process of identifying a decedent’s probate assets, paying valid claims, and distributing what remains. The key phrase is “probate assets.” Under section 731.201(32), Florida Statutes, a probate asset is property that was owned by the decedent and that does not pass automatically by operation of law or by contract.

Three categories routinely avoid probate:

• Property held with rights of survivorship. When a joint tenant or a husband and wife holding as tenants by the entireties dies, title vests in the survivor instantly. There is nothing for the estate to distribute.
• Beneficiary-designated accounts and policies. Life insurance, annuities, IRAs, 401(k)s, and accounts titled payable-on-death (POD) or transfer-on-death (TOD) pass by contract to whoever is named, not through the will.
• Assets held in a funded revocable living trust. The trust, not the decedent, owns the property, so the trustee distributes it privately.

Everything else — a brokerage account in the decedent’s sole name with no TOD, a car titled only to them, a parcel of land owned individually — is a probate asset. Florida offers two main court tracks for those: formal administration and the faster summary administration available under section 735.201 when the probate estate is valued at $75,000 or less (excluding exempt property) or when the decedent has been dead more than two years.

Joint ownership of Florida real property: the three flavors

How a deed is worded controls everything. In our office, the single most common probate surprise involves real estate that the family assumed was joint but legally was not. Florida recognizes three forms of co-ownership, and only two of them avoid probate.

Tenants by the entireties (married couples)

When spouses take title together, Florida presumes a tenancy by the entireties unless the deed clearly says otherwise. At the first spouse’s death, the survivor owns the whole property automatically — no probate, and creditors of the deceased spouse generally cannot reach it. This is the cleanest outcome and the one most Boca Raton couples already have without realizing it.

Joint tenancy with right of survivorship (JTWROS)

Unmarried co-owners — a parent and adult child, two siblings, partners — can hold property as joint tenants with right of survivorship, but in Florida the deed must expressly state the survivorship language. Without those words, the law defaults to tenancy in common. That default trips up countless estates. A father who adds his daughter to the deed “so it passes to her” has often created a tenancy in common by accident, meaning his half still goes through probate.

Tenants in common (no survivorship)

Tenants in common each own a separate, devisable share. When one dies, their fractional interest does not go to the other owners — it passes under their will or, if none, by Florida’s intestacy statute (Chapter 732). That undivided interest is a probate asset, and it is exactly the kind of real-property fraction that forces an otherwise simple estate into formal administration.

Florida’s enhanced life estate (Lady Bird) deed

For real-property-heavy estates, the enhanced life estate deed — commonly called a Lady Bird deed — deserves special mention. It lets an owner keep full control during life, including the right to sell or mortgage without anyone’s consent, while naming a “remainder” beneficiary who takes title automatically at death. The home transfers outside probate, the owner preserves the homestead and Save Our Homes property-tax benefits, and Medicaid estate-recovery exposure is typically reduced.

Lady Bird deeds are not codified by a single statute; they are a creature of Florida common law and title-industry practice, which means drafting precision matters. A poorly worded one can cloud title or accidentally defeat the homestead protections it was meant to preserve. We see botched do-it-yourself versions surface during probate more often than we would like.

Beneficiary-designated assets: powerful but fragile

Contract-based transfers are wonderfully efficient until a designation is stale, blank, or contradicted by the will. A few hard truths from probate files:

1. The beneficiary form beats the will. If your life insurance still names an ex-spouse and your will leaves everything to your children, the ex-spouse generally collects. Florida’s revocation-on-divorce rule (section 732.703) voids many designations to a former spouse, but it does not cover every asset type, and out-of-state or ERISA-governed plans can override it.
2. “Estate” as beneficiary drags the asset into probate. Naming your estate as the beneficiary of an IRA or policy is the easiest way to forfeit the whole point of the designation — the money now passes through the court and becomes reachable by creditors.
3. No living beneficiary means it lapses into the estate. If every named beneficiary has predeceased and no contingent is listed, the proceeds default to the probate estate.
4. Minor beneficiaries create a guardianship problem. A minor cannot receive significant funds directly; without a trust, the court may require a guardianship of the property, which is slower and costlier than probate itself.

Florida also allows transfer-on-death registration for securities and brokerage accounts under the Uniform Transfer-on-Death Security Registration Act (sections 711.50–711.512). What Florida notably does not have is a transfer-on-death deed for real estate. Several states permit one; Florida does not. That gap is precisely why the Lady Bird deed fills such an important role here.

How real-property-heavy estates get tripped up

Because Florida lacks a TOD deed, real estate is the asset most likely to require probate even when the rest of the estate was carefully planned. Common scenarios we untangle in Palm Beach County:

• The solely owned homestead. A surviving spouse assumes the house “just passes,” but if the deceased spouse held it alone, it is a probate asset — though Florida’s constitutional homestead protections (Article X, Section 4) shield it from most creditors and dictate special inheritance rules.
• The out-of-state survivor who never updated the deed. A property bought before a remarriage, or before a child was added, still sits in one name.
• The rental held in an LLC with no operating-agreement succession. The real estate avoids probate, but the membership interest in the LLC may not.
• The fractional inherited interest. A decedent who inherited one-third of a family property as a tenant in common leaves that one-third to probate, even if they personally owned nothing else.

These are the situations where survivorship planning and beneficiary designations look complete on paper but leave a real-property gap. For a broader look at where estates stall, this overview of covers the procedural hurdles that apply in both Florida and New York. Families with assets in multiple states often need coordinated counsel; our colleagues handling regularly partner on ancillary matters, and our manages the in-state filings.

Homestead: Florida’s most misunderstood asset

No discussion of Florida probate is complete without homestead. The constitutional homestead is not just a tax break — it carries inheritance restrictions that can override a will. If a decedent is survived by a spouse or minor child, they generally cannot freely devise the homestead. The surviving spouse typically receives a life estate (or may elect a one-half tenant-in-common interest) with the remainder to the descendants.

This means a beneficiary designation or survivorship deed that conflicts with homestead law can be partially undone by the court. Homestead determinations are frequently the reason an otherwise non-probate estate still needs a probate judge to enter an order confirming the protected status and proper succession. If you are organizing your real property and want to align your deeds with your will, our guidance on wills and devises and our Florida probate overview are good starting points.

Putting it together: a simple decision filter

When a family brings us a list of assets, we sort each one with a quick filter:

• Is there a surviving joint owner with survivorship rights? → passes automatically, no probate.
• Is there a living, valid beneficiary (POD, TOD, insurance, retirement)? → passes by contract, no probate.
• Is it titled in a funded trust? → trustee distributes, no probate.
• Is it solely owned with no designation, or a tenant-in-common interest? → probate asset; choose summary or formal administration.
• Is it homestead real property? → special rules apply; expect a court order even if creditors cannot touch it.

Most Boca Raton estates land on a mix — a few accounts that transfer cleanly and one or two pieces of real property that do not. The goal of good planning is to shrink that probate column to zero before it is ever needed.

Talk to a Florida probate attorney

If you are an executor staring at a deed and unsure whether it triggers probate, or a property owner who wants survivorship and beneficiary tools to actually work, get a precise read on your titling before assuming anything passes “automatically.” Small wording differences carry large consequences in Florida real estate. Reach out through our Boca Raton office to review your specific assets.

Frequently Asked Questions

Do jointly owned homes in Florida always avoid probate?

Not always. Only joint ownership with survivorship rights avoids probate: tenancy by the entireties for married couples, or joint tenancy with right of survivorship when the deed expressly states it. If a deed simply lists two owners without survivorship language, Florida treats it as a tenancy in common, and the deceased owner’s share becomes a probate asset that passes under their will or by intestacy.

What happens if a Florida beneficiary designation names someone who has died?

If the named beneficiary predeceased the owner and no contingent beneficiary is listed, the proceeds usually default into the probate estate. The asset then passes through the will or Florida intestacy law and can become reachable by the decedent’s creditors, which defeats the purpose of the designation. Reviewing and updating beneficiary forms after every major life event prevents this.

Can I use a transfer-on-death deed for real estate in Florida?

No. Florida does not authorize transfer-on-death deeds for real property, even though some other states do. The closest Florida equivalent is the enhanced life estate, or Lady Bird, deed, which lets you keep full control during life and pass the property to a named remainder beneficiary at death without probate while preserving homestead and tax benefits.

Does a beneficiary designation override my will in Florida?

Generally yes for that specific asset. Payable-on-death accounts, life insurance, annuities, and retirement plans pass by contract to the named beneficiary regardless of what your will says. Florida’s revocation-on-divorce statute voids many designations to a former spouse, but it does not cover every account type, so conflicting designations and wills should be reconciled deliberately.

If most assets avoid probate, do I still need a probate attorney?

Often yes, because real property is the asset most likely to require probate in Florida. A single solely owned parcel, a tenant-in-common fraction, or a homestead with surviving family can force a court proceeding even when accounts transfer cleanly. A probate attorney confirms which assets truly pass outside court and handles the homestead determination and any required administration.