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Real property and wills – Educate yourself on the implications of Probate proceedings

Does My Will Control My Joint Property?

There are several different ways to hold real property with another individual in Florida. The three main ones are: 1) tenancy in common, 2) joint tenancy with a right of survivorship, and 3) tenancy by the entirety. The way co-ownership of real property is classified may have significant impacts on the disposition of an estate after one of the owners dies.

In Florida, the default classification of real estate ownership is known as tenancy in common. If a property title lists only the names of owners without specifying another classification, there is a presumption that the property is a tenancy in common (unless the individuals are married). Additionally, unless specifically stated otherwise, tenants in common own equal shares of the property. When a tenant in common dies, the real property passes according to that person’s estate plan. This type of ownership will ensure that the property will flow through the owner’s estate. However, unless this property is held by a mechanism that can avoid probate proceedings (e.g. a Revocable Trust), it must go through the time consuming, expensive and public probate process to transfer title to the heirs.

In contrast, in a joint tenancy with rights of survivorship, an owner’s interest automatically passes to the surviving joint tenant as an operation of law without a probate proceeding. While owning property as a joint tenant with a right of survivorship can be ideal for avoiding probate, the risk of owning property in this fashion is that the beneficiaries of the deceased owners estate may be different than the surviving joint owner. If the surviving joint tenant is different than the beneficiaries of the deceased owner’s estate or revocable trust, the joint tenancy with rights of survivorship generally controls. Many people execute a will or revocable trust, but neglect to update their beneficiary designations, believing that their new estate planning documents will take care of everything, but that may not be the case, and these discrepancies may even lead to litigation.

Finally, there is ownership as tenants by the entirety. This type of arrangement applies only to married couples. Like property owned as joint tenants with a right of survivorship, property owned as tenants by the entirety is automatically transferred when one of the owners dies. There is no need to probate the property, and the surviving spouse becomes the full owner of the property. The advantage of owning property as tenants by the entireties is that property held in this way is protected from creditors of one spouse (although it is not protected from the creditors of both spouses).

These are only a few of the ways that title to your property can affect the disposition of that property upon death. An experienced estate planning attorney does not just draft technically sound estate planning documents, but addresses each asset to ensure that it will pass according to the way you want it to go, meeting your desired wishes. Those interested in learning more should not hesitate to contact the experienced attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist you with your estate planning, probate administration, guardianship law and probate litigation needs. Bart Chepenik, JD LL M 305-613-3548 or Brad Trushin, 305-981-8889. We are accessible 7 days a week to help you and your family.

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