There are several types of jointly owned property recognized in Florida. Some types of jointly held property in Florida need to go through probate, and others do not because the asset passes at death to the surviving owner of the asset.
Tenancy by the Entireties
Florida recognized tenancy by the entireties, which is a form of jointly titled property for husband and wife under Florida law. At the death of the first spouse, the property automatically passes to the surviving spouse. Typically, tenancy by the entireties property will be titled as “Fred Jones and Martha Jones, husband and wife.” The title could also say “Fred Jones and Martha Jones, tenancy by the entireties.” For real estate, if the title simply says “Fred Jones and Martha Jones,” it will be treated as tenancy by the entireties if they were married at the time of the conveyance. We have written about cases involving jointly owned Florida real property titling issues here and here.
For bank accounts, typically there is a box that must be checked to determine what type of account it is. The checked box will control. If the bank does not have an option for tenancy by the entireties, and a box is checked for a joint account, it will be treated as a tenancy by the entireties account. Although the difference between a tenancy by the entireties account and a joint account with right of survivorship does not matter for inheritance purposes, it does have a critical importance for asset protection purposes.
For a bank account, if something other than a tenancy by the entireties or joint with right of survivorship is selected, the option selected will control. So long as tenancy by the entireties or a survivorship account is selected, the account will not go through probate. Read Bank Accounts: Tenancy By the Entirety v. Joint Tenancy With Right Of Survivorship.
Joint With Right of Survivorship
Typically when two people own an account or real estate who are not married, but they wish to have the asset automatically transfer to the surviving person on the death of the first person, a joint title with right of survivorship will be selected. If the asset is joint with right of survivorship, it will not go through probate.
If a deed to real estate says “Fred Jones and Bill Jones,” the title will not be considered as survivorship. Instead, the title will be considered tenants in common. The deed would have to read “Fred Jones and Bill Jones, joint tenants with rights of survivorship” for the asset to avoid going through probate.
Tenants in Common
If an asset is jointly titled but is not an tenancy by the entireties title, and is not joint with right of survivorship, it will likely be viewed as a tenancy in common. Such an asset will need to be probated.
Convenience Accounts
Sometimes, a bank account will be opened jointly for two people who are not married, and it is unclear as to whether a true joint account was intended, or instead the account was meant to be a convenience account. The person whose funds were put into the account would be the owner, and the added person would have been placed on the account for the convenience of the actual owner. Typically, the owner would by the senior person, often a parent, and the convenience person would be younger, typically an adult child. Untangling whether an account was supposed to be a survivorship account or a convenience account can often cause litigation between the estate and the holder of the account. For convenience account litigation, a probate will normally be opened, because the estate might need to be the plaintiff in the litigation.
