How to Pass on Property and Avoid Probate in Florida

When a person dies in Florida with assets in his or her own name, those assets are often subject to probate.

Probate is a complex legal process where the will is validated, heirs are determined, assets are inventoried and appraised, debts are paid and assets are ultimately distributed – all under the supervision of a judge.

If somebody dies without an estate plan that is designed to avoid probate, the beneficiaries likely have no choice but to hire an attorney if they want to take control over the estate’s assets.

The State of Florida generally does not allow do-it-yourself probate. This means that you will need the assistance of an attorney to navigate Florida probate. A probate attorney can also advise you on how to title property in a way that avoids probate.

Here are your options for titling your Florida home:

Sole ownership — this is just your name on the title and may be the preferable option if you are single, recently divorced or married with special circumstances. For example, if you are married to someone who has a high-liability profession (like a doctor) or have a spouse with credit issues, sole ownership can protect the property against creditors.

Joint tenancy — this is where two people own property together. When the first property owner dies, the second property owner becomes the sole owner without the property having to go through probate. In Florida, married couples that take title as husband and wife have created what is known as tenancy by the entirety. With this form of title, one spouse cannot transfer their interest in the property without the consent of the other spouse.

Tenancy in common — this is where two or more people own property together. Under this type of property title, each owner has the option to sell, lease and/or pass on his or her interests in the property to heirs.

In addition, title to property in Florida can be held in the name of a separate legal entity, such as a limited liability company (LLC), corporation or partnership. You also have the option of creating a Florida Land Trust, where the property is titled in the name of the trust for the benefit of the trust’s beneficiaries.