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  • Ryan J. Smollar

Transfer of Property After Death in Florida

Updated: Jan 19

Transfer of property after death in Florida, if the deceased person leaves a will, goes in accordance with the terms stated in the will. If there is no will, the process gets more complex. There is no automatic “transfer on death agreement” in Florida that can be made. When there is no will, the decedent’s (person who has passed) estate has to go through Florida’s intestacy (meaning there was no will) statutes. The state’s statutes, then, will decide who receives property from the estate based on marital status or family ties. The transfer of property must be fully documented. Contacting a probate lawyer can help with the a smooth transfer of a property after death.



AVOIDING PROBATE


Probate can be avoided if the property has been titled as being held by a Trust. A Trust is similar to a will except that a Trust is in charge of the property for a group of people, as opposed to just one or two persons.


Certain types of deeds (Life Estate, Enhanced Life Estate, Quit Claim, etc.) other than a Trust can also avoid probate.


In addition, probate can be avoided if a property was titled as “Joint Ownership with Survivorship Rights.” This type of property title would then automatically pass to the other owner.


Probate can also be avoided if a property was titled “Tenancy by the Entirety.” This type of title only applies to couples who are married. The term means that neither one of the two that make up a couple are individual owners, but that the couple “as a whole” owns the property. Property ownership would then automatically pass to the surviving spouse. In the State of Florida, the law actually assumes that, when a married couple purchases a home together, they intend to own the home together.


WHEN YOU CAN’T AVOID PROBATE


If the decedent owned property with only his/her name on it, transferring real estate property in Florida will have to go through the probate process. Without a will, the decedent’s estate becomes known as an “intestate” estate. A Florida probate representative will be appointed by the probate court to be able to transfer property, according to Florida’s intestate succession law. The intestate succession will then decide who the right heirs to the property are, which generally will be a surviving spouse, children, or other surviving family member or next of kin.


Even with a will, a probate process will be part of the equation if a representative is designated in the will to be able to transfer ownership of property. The probate court will need to appoint that representative and then, he/she is given the authority to transfer ownership of the property.


If the property in question was owned by the decedent and another person (who was not a spouse), that situation is known as "Tenants in Common." In this type of title relationship, each person owns a separate share of the property. The surviving member of property titled in this manner would have to go through the probate process to be awarded the transfer of the decedent’s share of the property.


If you find yourself in a situation where you need to know the answer to the question “What is the transfer of property after death in Florida like?” you need to find a probate attorney in Florida who can help guide you through the process. Don’t try navigating the transfer of real estate property in Florida on your own. Contact the probate attorneys at Elder Law, P.A. today.


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