When someone passes away, their assets are typically distributed to their heirs and beneficiaries through a legal process called probate. In Florida, probate can be a complex and time-consuming process, and many people want to know which assets are considered part of their probate estate. One common question is whether a house is counted as a probate asset in Florida.
The short answer is that it depends on how the house is titled. If the house is titled solely in the name of the deceased person, then it will likely be considered a probate asset. However, if the house is jointly owned with someone else, or if it is titled in a trust or other legal entity, it may not be subject to probate.
Let’s take a closer look at each of these scenarios:
House Titled Solely in the Name of the Deceased Person:
If the house is titled solely in the name of the deceased person, it will likely be considered part of their probate estate. This means that the property will need to go through the probate process before it can be transferred to the heirs or beneficiaries.
During the probate process, the court will determine who should receive the property according to the deceased person’s will, or if there is no will, according to Florida’s intestacy laws. The property may need to be appraised, and any outstanding debts or taxes will need to be paid before it can be distributed.
House Jointly Owned with Someone Else:
If the house is jointly owned with someone else, the property may not be subject to probate. In Florida, there are several ways that property can be owned jointly, including as tenants by the entirety, joint tenants with right of survivorship, and tenants in common.
If the house is owned as tenants by the entirety, then the surviving spouse will automatically inherit the property upon the death of the other spouse, without the need for probate. If the house is owned as joint tenants with right of survivorship or tenants in common, the surviving joint owner or owners will inherit the deceased owner’s share of the property outside of probate.
House Titled in a Trust or Other Legal Entity:
If the house is titled in a trust or other legal entity, it may not be subject to probate. When property is held in a trust, it is owned by the trust rather than the individual, so it is not considered part of the probate estate. Instead, the property will be distributed according to the terms of the trust.
Homestead Property:
In Florida, homestead property is treated differently than other real estate for probate purposes. The Florida Constitution provides certain protections for a homestead property, including protection from forced sale to satisfy creditors (with some exceptions) and protection for surviving spouses and heirs. As a result, homestead property is generally not considered a probate asset in Florida. However, there are some exceptions to this rule. It is important to consult with an experienced Florida estate planning attorney to understand how homestead property will be treated in your particular situation.
Overall, whether a house is counted as a probate asset in Florida depends on how it is titled. If it is titled solely in the name of the deceased person, it will likely be subject to probate. However, if it is jointly owned or titled in a trust or other legal entity, it may not be subject to probate. It is important to consult with an experienced estate planning attorney to determine the best way to hold title to your property and to develop an estate plan that meets your specific needs and goals.
Please feel free to reach out for a free consultation by emailing info@tejeslaw.com, calling (407) 734-5166 or using this link to schedule an appointment yourself.
Sources:
- Florida Statutes, Section 732.401: https://www.flsenate.gov/Laws/Statutes/2021/732.401
- Florida Constitution, Article X, Section 4: https://www.flsenate.gov/Laws/Constitution#A10S04
- Florida Bar, “Probate in Florida Pamphlet”: https://www.floridabar.org/public/consumer/pamphlet006/
