As the saying goes, “anyone who believes in free will has never heard of probate.” Attorneys are frequently contacted by clients who need help navigating estates after the loss of a family member or friend. Probate is often inevitable if there is property to be divided.
On the other hand, probate litigation can be significantly curtailed with proper planning. Yet, according to research conducted over two decades by the Williams Group in Sal Clemente, California, about 70% of families end up spending much of the very property they are arguing about on probate litigation.
Traditional estate planning documents may be a proactive way to avoid litigation. But there’s a less obvious document that can assist in avoiding probate litigation: the deed to your property. A deed dictates how real property will be distributed and, in this respect, is an estate plan.
In Florida, there are three co-ownership forms for real property: joint tenancy with rights of survivorship (JTWROS), tenancy in common, and tenancy by the entireties (TBE). These forms differ in their methods of distribution if one co-owner passes away.
If your property is held via JTWROS when you pass away, your share will be distributed among the remaining co-owners. Those remaining co-owners now own that property and can keep or distribute it as they desire. This may not be an issue if the surviving co-owners’ wishes are identical to those of the deceased co-owner. However, for joint tenants who have differing plans for the ultimate distribution of the property, such as friends who buy property together or married couples who each have children from a previous marriage, it may present issues.
TBE functions like the JTWROS, but is a form of ownership only available to married couples. It is the default type of ownership when a conveyance is made to married couples.
Tenancy in common is the most common type of ownership in Florida. Here, the co-owner who passes away does not automatically transfer that portion to the surviving co-owner. Instead, it passes according to probate (either through an existing will, or in the event that there is no will, through the Florida intestacy statute).
Consider reviewing your property deed to ensure your ownership form reflects your wishes. You may locate your property deed through your county’s official records.