Probate and Jointly Held or Beneficiary-Designated Assets in Florida

In Florida, jointly held property with rights of survivorship and assets carrying a valid beneficiary designation generally pass outside probate, moving directly to the surviving owner or named beneficiary by operation of law rather than through a court-supervised estate. Probate is only required when an asset has no automatic transfer mechanism and is titled solely in the decedent’s name. Understanding which of your assets fall into which bucket is the single most useful thing you can do to predict how your estate will actually settle.

I have sat across the table from too many families who assumed a will controlled everything, only to learn that the bank account, the house, and the IRA all bypassed the will entirely. Sometimes that is a relief. Sometimes it is a disaster. The difference usually comes down to titling and paperwork that nobody revisited for fifteen years.

How Florida Decides What Goes Through Probate

Probate, governed by Chapters 731 through 735 of the Florida Statutes, is the court process for transferring a decedent’s probate assets. The phrase matters. Not everything a person owns is a probate asset. Florida courts only administer property that was titled in the decedent’s sole name with no surviving co-owner and no contractual or statutory means of passing to someone else.

Two big categories of property routinely skip probate:

• Jointly held assets with survivorship rights — real estate or accounts where a surviving co-owner automatically absorbs the decedent’s share.
• Beneficiary-designated assets — life insurance, retirement accounts, annuities, and accounts marked payable-on-death (POD) or transfer-on-death (TOD).

When these mechanisms are in place and valid, the asset transfers the moment of death. No personal representative, no court order, no notice to creditors against that particular asset. That is the appeal, and also the danger, because these transfers happen whether or not they match the plan written in the will.

Jointly Held Property in Florida

Joint ownership is not one thing. Florida recognizes several forms, and the form controls the outcome far more than people expect.

Joint Tenancy With Right of Survivorship

When two or more people own property as joint tenants with right of survivorship (JTWROS), the death of one owner extinguishes that owner’s interest and the survivor takes the whole. The decedent’s share does not pass under the will, and it is not a probate asset. For this to apply in Florida, the survivorship language generally must be express. Under section 689.15 of the Florida Statutes, the common-law presumption of survivorship in joint tenancies was abolished for most property; an estate in joint tenancy is treated as a tenancy in common unless the instrument creating it clearly establishes a right of survivorship.

The practical lesson: a deed or account agreement that simply lists two names is not automatically survivorship property. The words on the document decide.

Tenancy by the Entireties

Married couples in Florida can hold property as tenants by the entireties, a form available only to spouses. It carries an automatic right of survivorship and also offers strong creditor protection because neither spouse owns a divisible individual share. On the death of one spouse, the survivor owns the entire asset outright, free of probate. Florida courts presume that real estate conveyed to a married couple is held as tenancy by the entireties, and case law extends that presumption to many marital bank accounts. This is one of the most common reasons a surviving spouse never needs to open a probate estate for the family home.

Tenancy in Common

Tenants in common own separate, undivided shares. There is no survivorship. When one tenant in common dies, that person’s fractional share is a probate asset and passes under the will or by intestacy. Co-owners are often surprised by this. A brother and sister who inherited the family property together usually hold it as tenants in common, which means each death generates a probate proceeding for that share.

Beneficiary-Designated Assets

Beneficiary designations are contracts. The financial institution agrees to pay whomever the owner names, and that contract overrides the will. This is why I tell clients the most powerful estate-planning document they own might be a one-page form they filled out at a bank twenty years ago.

Payable-on-Death and Transfer-on-Death Accounts

Florida permits POD designations on bank accounts and TOD registrations on securities. The TOD framework for securities is set out in Florida’s Uniform Transfer-on-Death Security Registration Act, sections 711.50 through 711.512 of the Florida Statutes. During life, the beneficiary has no rights and the owner can spend, change, or revoke at will. At death, the named beneficiary claims the asset by presenting a death certificate. Clean and fast, when the form is current.

Retirement Accounts, Life Insurance, and Annuities

IRAs, 401(k)s, life insurance policies, and annuities pass to their named beneficiaries by contract. These rarely belong in probate. The exceptions are the ones that bite: if the named beneficiary has died and no contingent beneficiary exists, or if the estate itself is named as beneficiary, the proceeds fall back into the probate estate. An estate-as-beneficiary on a retirement account can also accelerate income tax, so it is usually a planning mistake rather than a choice.

The Lady Bird Deed

Florida is one of the states that recognizes the enhanced life estate deed, commonly called a Lady Bird deed. It lets an owner keep full control during life — including the right to sell or mortgage — while naming a remainder beneficiary who takes the property automatically at death, outside probate. It has become a popular tool for passing a homestead while preserving Medicaid and homestead protections. It is also easy to botch, and a defective deed can drag the property right back into court.

When Non-Probate Assets Get Pulled Into Probate Anyway

This is where the clean theory meets messy reality. Non-probate transfers are not bulletproof. Several situations reach through the designation and force the asset, or its value, back into the estate’s orbit.

1. No surviving beneficiary or co-owner. If everyone named has predeceased and there is no contingent, the asset reverts to the estate and becomes probate property.
2. Stale or contradictory designations. An ex-spouse left on a 401(k), a child who has since died, a form that conflicts with the will — these create disputes that often land in litigation even if probate is technically avoided.
3. The Florida spousal elective share. Under sections 732.201 through 732.2155 of the Florida Statutes, a surviving spouse may claim an elective share equal to 30% of the elective estate. Critically, the elective estate includes many non-probate assets — survivorship property, POD/TOD accounts, certain revocable transfers, and more. A spouse who was deliberately written out of a will and steered around through beneficiary forms can still reach those assets.
4. Homestead. Florida’s constitutional homestead protections restrict how a homestead can be devised when a spouse or minor child survives. Even a survivorship deed cannot override those constitutional limits.
5. Undue influence and capacity claims. A beneficiary change made shortly before death by a vulnerable owner is a classic target for litigation. Courts can set aside designations procured by undue influence, fraud, or while the owner lacked capacity.
6. Convenience accounts. Florida law (section 655.80) recognizes that some “joint” accounts were really set up so a caretaker could pay bills, not to make a gift. These can be challenged and treated as estate property rather than the survivor’s windfall.

That last cluster is the territory I see most often in contested matters: a late-life beneficiary change, an adult child added to an account, a sudden survivorship deed. These transfers look like they bypass probate, but they invite the very litigation that probate procedures are designed to channel. When a guardianship was in place before death, the scrutiny is even sharper, because every transaction the guardian or agent made is fair game for review.

From Guardianship to Probate: Why the Transition Magnifies These Issues

When someone has been under guardianship and then passes away, the estate does not start from a clean slate. The guardian’s accountings, the court’s prior approvals, and any transfers made on the ward’s behalf all become part of the record. Beneficiary designations changed during a period of diminished capacity are presumptively suspect. If a survivorship deed or a POD form was created after the ward could no longer manage their own affairs, expect the personal representative — and any disinherited heir — to look hard at whether it should stand.

The interplay between New York and Florida matters here too, because families often have property and proceedings in both states. A guardianship begun in one jurisdiction and a death in another can require coordinated counsel. Our attorneys handle and routinely advise families whose loved ones split time between Long Island and Florida. When the validity of a transfer is in dispute, that often becomes a question for rather than a routine administration.

Practical Steps to Keep Your Plan From Falling Apart

Coordination is everything. A will or trust that is never reconciled against the actual titling and beneficiary forms is a plan only on paper.

• Pull every beneficiary form — retirement, insurance, annuities, POD/TOD — and read them against your will. Fix contradictions.
• Confirm how your real estate is titled. JTWROS, tenancy by the entireties, and tenancy in common produce three different outcomes.
• Name contingent beneficiaries everywhere. The most common failure is a primary who dies first with no backup.
• Think twice before naming your estate as a beneficiary; it usually forces probate and can worsen taxes.
• If you are using a revocable trust, make sure assets are actually retitled into it. An unfunded trust controls nothing.
• Revisit designations after every major life event — marriage, divorce, death of a beneficiary, the sale of a property.

For Florida-specific filings and homestead questions, our Florida probate attorneys can review how your assets are titled and whether any transfers are exposed to an elective-share or homestead challenge. You can also explore our guidance on wills and estate documents and our overview of Florida probate administration, or contact our office to discuss a specific estate.

The Bottom Line

Jointly held and beneficiary-designated assets are the workhorses of probate avoidance in Florida, and used deliberately they save families months of court time. But they are only as reliable as the paperwork behind them. Survivorship language must be express, designations must be current, contingents must exist, and none of it can quietly override a spouse’s elective share, homestead protection, or a legitimate challenge to capacity. The estates that settle smoothly are the ones where the will, the deeds, and the beneficiary forms all tell the same story.

Frequently Asked Questions

Do jointly held assets always avoid probate in Florida?

No. Only joint property with an express right of survivorship — such as joint tenancy with right of survivorship or tenancy by the entireties between spouses — passes automatically to the survivor. Property held as tenants in common has no survivorship, so the decedent’s share becomes a probate asset and passes under the will or by intestacy. Under section 689.15, Florida treats a joint estate as a tenancy in common unless the document clearly creates survivorship rights.

Can a beneficiary designation override my will in Florida?

Yes. Beneficiary designations are contracts with the financial institution and generally control regardless of what your will says. A POD bank account, a TOD securities account, an IRA, or a life insurance policy pays the named beneficiary directly. If your will and your beneficiary forms conflict, the forms usually win — which is why they must be reconciled with your overall plan.

Can a surviving spouse reach assets that were set up to avoid probate?

Often, yes. Florida’s elective share, found in sections 732.201 through 732.2155, lets a surviving spouse claim 30% of the elective estate, and that elective estate includes many non-probate assets such as survivorship property and POD/TOD accounts. A spouse cannot ordinarily be disinherited simply by steering assets around the will through beneficiary forms.

What happens if the named beneficiary has already died?

If the primary beneficiary predeceased the owner and no contingent beneficiary was named, the asset typically reverts to the estate and becomes a probate asset. This is one of the most common reasons assets meant to avoid probate end up in court. Naming contingent beneficiaries on every account is the simplest fix.

Can a beneficiary change made near death be challenged?

Yes. A change in titling or beneficiary designation made when the owner lacked capacity, or that was procured through undue influence or fraud, can be set aside by a Florida court. These claims are especially common when the owner was elderly, recently under guardianship, or dependent on the person who benefited from the change.