Probate and Jointly Held or Beneficiary-Designated Assets in Florida: A Personal Representative’s Guide

In Florida, jointly held property with rights of survivorship and assets that name a living beneficiary generally pass outside of probate, going directly to the surviving owner or named beneficiary by operation of law rather than through the decedent’s will. Probate is only needed for assets the decedent owned in their sole name with no surviving co-owner and no valid beneficiary designation. For a personal representative, sorting which is which is usually the first real task of an estate.

That single distinction drives most of the early decisions an executor in South Florida has to make. It determines what you actually have authority over, what the estate can be taxed or charged against, and whether you even need to open a formal probate case at all. Let’s walk through how Florida treats these assets, where the traps are, and what you should do before you sign anything.

What Counts as a Probate Asset in Florida

A probate asset is property the decedent owned at death that does not transfer automatically to someone else. The classic examples are a bank account titled in the decedent’s name alone, real estate held as a sole owner or as a tenant in common, a car titled to one person, and personal belongings. These are the assets that fall under the probate court’s supervision and that you, as personal representative, are appointed to collect, protect, and distribute under Chapter 733 of the Florida Statutes.

Everything else — and it is often the larger share of a modern estate — moves through what attorneys call non-probate transfers. Understanding the line between the two is not academic. Misjudge it and you can spend months and several thousand dollars probating an estate that barely needed it, or worse, distribute property you had no legal authority to touch.

The two questions that decide everything

1. How is the asset titled? Joint ownership with survivorship rights changes the answer entirely.
2. Is there a beneficiary or payable-on-death designation? A valid designation generally overrides the will.

Ask those two questions about each asset and the picture clears up fast. The will, despite what most families assume, controls only the leftovers — the sole-name assets with no designation.

Jointly Held Property and the Survivorship Question

Florida recognizes several forms of co-ownership, and the form matters more than the names on the deed. Joint tenancy with right of survivorship and tenancy by the entireties both carry a survivorship feature: when one owner dies, their interest evaporates and the survivor owns the whole thing. There is nothing for probate to administer because, legally, the decedent’s share ended at death.

Tenancy by the entireties deserves special attention because it is unique to married couples and is extremely common in Florida. A homestead or bank account held this way passes to the surviving spouse automatically and, as a bonus, enjoys strong creditor protection during the marriage. Under section 689.115 of the Florida Statutes, mortgages and certain instruments to spouses are presumed to create a tenancy by the entireties, which catches a lot of personal representatives by surprise.

Where joint ownership gets complicated

• Tenancy in common has no survivorship. If two siblings own a beach condo as tenants in common, the deceased sibling’s half is a probate asset and passes under their will or by intestacy. Co-ownership does not automatically mean the survivor takes all.
• “Convenience” accounts. An aging parent often adds an adult child to a bank account only to help pay bills. Under section 655.79, Florida law presumes a joint account passes to the survivor, but that presumption can be rebutted with clear and convincing evidence that no gift was intended. These disputes are bitter and common.
• Real estate titling errors. A deed that simply lists two grantees without the magic survivorship language usually creates a tenancy in common, not joint tenancy. Read the deed; do not assume.

If you are a personal representative and the family is feuding over a joint account, do not distribute it on a hunch. Get the account agreement and the deed in front of an attorney first.

Beneficiary-Designated and Payable-on-Death Assets

The other large category of non-probate property is anything that names a beneficiary. These pass by contract or statute directly to the named person, and the will has no say in the matter. The most common examples in a Florida estate include:

• Life insurance with a named beneficiary
• Retirement accounts — IRAs, 401(k)s, 403(b)s, and annuities
• Payable-on-death (POD) bank accounts and totten trusts
• Transfer-on-death (TOD) brokerage and securities accounts, authorized under Florida’s Uniform Transfer-on-Death Security Registration Act, sections 711.50–711.512
• Lady Bird deeds (enhanced life estate deeds), which let real estate pass to a remainder beneficiary while the owner keeps full control during life

The governing rule is simple and unforgiving: the beneficiary designation controls, even when it contradicts the will. If a man’s will leaves “everything to my children” but his life insurance policy still names his ex-wife, the ex-wife collects. A will cannot rewrite a contract with an insurance company.

The designation traps every executor should check

I have seen more estates derailed by stale designations than by any dramatic will contest. Watch for these:

• Predeceased or no beneficiary. If the only named beneficiary died first and there is no contingent beneficiary, the asset often defaults to the estate and becomes a probate asset after all.
• Ex-spouses. Florida’s section 732.703 automatically voids certain beneficiary designations in favor of a former spouse after divorce — but it does not reach federally governed assets like ERISA retirement plans, where the named ex-spouse may still win.
• Minor beneficiaries. Naming a minor child directly can force a guardianship of the property, which is exactly the court process families were trying to avoid.
• “Estate” as beneficiary. When someone names their own estate as beneficiary, that asset is pulled into probate by design.

What This Means for You as Personal Representative

Your fiduciary duties under Florida law attach to probate assets. You generally have no authority to collect or manage a POD account that passed to a named individual — that money is theirs, not the estate’s, and you should not be touching it. Confusing the two is a fast way to create personal liability.

That said, non-probate assets do not vanish from your radar entirely. A few important crossovers:

• Creditor claims and the elective share. Florida’s surviving-spouse elective share under sections 732.201–732.2155 reaches into many non-probate assets, including joint accounts, POD accounts, and revocable trust property. A spouse can claim 30% of the augmented estate regardless of how things were titled.
• Homestead. Florida’s constitutional homestead protections and restrictions on devise can override ordinary titling and beneficiary rules, especially when a spouse or minor child survives.
• Estate tax apportionment. If a federal estate tax is owed, non-probate beneficiaries may have to contribute their proportionate share under section 733.817.

A useful early step is to build a simple two-column inventory: probate assets on one side, non-probate transfers on the other, with the controlling document noted for each. That single document will guide nearly every decision you make and is the backbone of any competent administration. The almost always trace back to assets that were misclassified at the very start.

When you may not need full probate at all

If virtually everything passed by survivorship or designation and only a modest sole-name asset remains, Florida offers streamlined paths. Disposition without administration is available for very small estates where the only assets are exempt property or final expenses. Summary administration under sections 735.201–735.206 is available when the probate estate is valued at $75,000 or less, or when the decedent has been dead for more than two years. Either route can save your family substantial time and cost — but only an honest asset inventory tells you whether you qualify.

Coordinating Your Plan Before Death — A Note for Families

For readers who are planning rather than administering, the lesson cuts both ways. Beneficiary designations and joint titling are powerful tools for keeping assets out of probate, but only when they are coordinated with the will and trust. A will that has been carefully drafted means little if the beneficiary forms quietly contradict it. Review your designations after every major life event — marriage, divorce, a birth, a death — and keep them in sync with your overall estate plan.

Cross-state families are a special case. We frequently work with clients who own property in both Florida and New York, where the interplay of two probate systems demands careful planning; Morgan Legal’s team handles alongside Florida matters so nothing falls through the jurisdictional cracks. For estates centered here in South Florida, our attorneys guide personal representatives through every stage of Florida probate from the first inventory to final distribution.

Whether you are stepping into the role of executor or trying to spare your own family the headache, the principle is the same: title and designations win, the will gets the rest. If you are unsure which category an asset falls into, that is exactly the question worth asking before you act. Learn more about the Florida probate process or reach out to our office to talk through your specific estate.

Frequently Asked Questions

Do jointly held bank accounts go through probate in Florida?

Usually not. Florida law (section 655.79) presumes a joint account passes to the surviving owner outside probate. That presumption can be challenged with clear and convincing evidence that the account was only set up for convenience and no gift was intended, so contested joint accounts can still end up before the court.

Does a beneficiary designation override my will in Florida?

Yes. Assets with a valid beneficiary, payable-on-death, or transfer-on-death designation pass directly to the named person and are not controlled by the will. If your will and your beneficiary forms conflict, the designation generally wins, which is why keeping them coordinated is critical.

What happens if the named beneficiary died before the account owner?

If there is no surviving primary or contingent beneficiary, the asset often defaults to the decedent’s estate and becomes a probate asset. Some designations name the estate directly, which also pulls the asset into probate. Always check for contingent beneficiaries.

Can a surviving spouse claim non-probate assets in Florida?

Yes. Florida’s elective share (sections 732.201–732.2155) lets a surviving spouse claim 30% of the augmented estate, which reaches many non-probate assets including joint accounts, POD accounts, and revocable trust property, regardless of how they were titled.

Do I need to open probate if everything passed by survivorship or designation?

Maybe not. If only a small sole-name asset remains, Florida offers disposition without administration or summary administration (estate of $75,000 or less, or death more than two years ago). An accurate asset inventory determines whether you qualify.