When someone dies owning real estate in Florida and does not have a carefully drafted estate plan or has a defective title (a/k/a invalid deed), then a probate administration may be necessary. There are several instances where this may occur, and here are a few examples:
Title Held Individually or as Tenants in Common
In many instances, the title to real estate is held in an individual's name ("fee simple") or by a group of individuals, which is legally known as "tenants in common." Individuals holding title to real estate as tenants in common have no rights of survivorship, which means that when someone dies, the decedent's individual interest in the real estate will need to be probated in order for it to pass on to the heirs of the estate.
Joint Tenants with Full Rights of Survivorship
Another way that a group of individuals or family members can hold title is called "joint tenants with full rights of survivorship." This means that if one owner dies, the surviving joint tenants absorb the decedent's interest in the real estate. In Florida, the doctrine of the right of survivorship in cases of real estate held jointly by individuals is not recognized, unless the instrument creating the estate shall expressly provide for the right of survivorship. Again, each individual's estate would need to be probated if the deed does not contain these magic words.
Tenants by the Entirety
In Florida, when a husband and wife acquire real or personal property jointly, it is presumed that title is held as "tenants by the entirety" with rights of survivorship. This means that the surviving spouse would automatically acquire the deceased spouse's interest in the real estate. However, upon a subsequent divorce, the former spouses will hold title to the real estate as tenants in common.
Defects in the Decedent's Title
There are also many circumstances where the actual deed that conveyed title to the decedent is defective on its face. The Florida conveyancing laws involving real estate are complicated, convoluted, and can be very unforgiving. Some examples of this are:
Should any of the foregoing conveyance defects arise, then the heirs or devisees of the decedent may very well find themselves in the midst of an expensive probate administration, or even worse, litigation.
How Do I Avoid These Title Issues and Probate Administration?
Luckily, there are ways to avoid these title issues that could require a probate administration in Florida! The experienced attorneys at Loshak Leach LLP can draft an estate plan involving trusts and other legal documents that will avoid the need for a probate administration involving your real estate investments. Or if you are the heir or devisee of an estate that needs to be probated, we can help with that too! Give us a call today at (954) 334-1122 for a free consultation.