Probate and Jointly Held or Beneficiary-Designated Assets in Florida: What Actually Passes Through the Estate

In Florida, jointly held and beneficiary-designated assets generally pass outside of probate by operation of law or contract, not through the deceased person’s will. Property owned with rights of survivorship, accounts with a valid pay-on-death or transfer-on-death designation, and life insurance or retirement plans naming a living beneficiary move directly to the surviving owner or named recipient the moment of death. The probate estate captures only what the decedent owned alone in their own name with no surviving co-owner and no enforceable beneficiary designation.

That single distinction decides how most Florida estates actually settle. Families often assume a will controls everything; in practice, the will controls a surprisingly thin slice of assets once survivorship deeds, joint accounts, and beneficiary forms are layered on top. Understanding which category an asset falls into is the first thing any honest probate analysis has to do, and it is where a great deal of litigation begins.

How Florida Decides Whether an Asset Goes Through Probate

Florida’s Probate Code is found in Chapters 731 through 735 of the Florida Statutes. But the Probate Code never gets a chance to govern an asset that already has a built-in destination. Survivorship and beneficiary mechanisms are “non-probate transfers,” and they take priority because title or contract has already spoken before the probate court is ever asked to.

The working test I use with clients is simple. Ask three questions about each asset, in order:

1. Is there a surviving co-owner with rights of survivorship? If yes, the asset usually vests in that co-owner and never enters probate.
2. Is there a valid beneficiary, POD, or TOD designation naming someone who is alive? If yes, the asset passes by contract to that person.
3. Is it titled in a revocable living trust? If yes, the trustee administers it under the trust, not the will.

Only when the answer to all three is “no” does the asset land in the probate estate, where the will (or, absent a will, Florida’s intestacy statutes in Chapter 732) decides who inherits.

Jointly Held Real Property: The Survivorship Question

How Florida real estate passes depends entirely on how the deed is worded. This is the area where well-meaning families get the biggest surprises.

Tenancy in Common (the default)

Under Fla. Stat. § 689.15, Florida presumes a tenancy in common unless survivorship is expressly created. A tenant in common owns an undivided fractional share, and that share does pass through probate at death. Two siblings who inherit a house “50/50” as tenants in common each leave their half to their own heirs. There is no automatic survivorship.

Joint Tenancy with Right of Survivorship

To create survivorship between owners, the deed must say so. When it does, the surviving joint tenant absorbs the decedent’s interest outside probate. The deceased owner’s will is irrelevant to that property, even if it says something different.

Tenancy by the Entireties

For married couples, Florida recognizes tenancy by the entireties, a form of ownership the Florida Supreme Court addressed at length in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). Entireties property carries automatic survivorship and strong creditor protection. When one spouse dies, the survivor owns the whole, and probate is unnecessary for that asset.

The Homestead Wrinkle

Florida homestead is its own universe. Even with the right deed language, the descent of homestead is constrained by Article X, Section 4 of the Florida Constitution and Fla. Stat. § 732.401. If the decedent is survived by a spouse or minor child, the owner cannot freely devise the homestead, and a defective devise can trigger a statutory split, often a life estate to the spouse with a remainder to descendants, or the spouse’s election to take a one-half tenancy in common. Homestead frequently requires a probate proceeding even when the family expected to avoid one.

Joint Bank and Brokerage Accounts

Joint financial accounts in Florida are governed largely by Fla. Stat. § 655.79, which presumes that a multi-party deposit account is held with rights of survivorship. On the death of one owner, the balance belongs to the survivor unless there is clear and convincing evidence the account was set up only for convenience, not as a gift.

That convenience-versus-survivorship dispute is one of the most litigated issues in Florida probate. An aging parent adds an adult child to an account “just to pay bills.” The parent dies. The child says the money is theirs by survivorship; the other siblings say it belongs to the estate. Courts look at intent, contributions, the account documents, and the circumstances, and the outcome is rarely obvious from the signature card alone.

Beneficiary-Designated Assets: Contracts That Override Wills

Many of the largest assets a Floridian owns never touch a will because they pass by contract:

• Life insurance proceeds go to the named beneficiary.
• Retirement accounts (IRAs, 401(k)s) pass to the designated beneficiary, with spousal rights under federal law for many employer plans.
• Payable-on-death (POD) bank accounts and transfer-on-death (TOD) securities accounts pass to the named payee.
• Annuities pay the contract beneficiary.

A common and expensive mistake: people update their will but never update the beneficiary form. The form wins. A will cannot rewrite a life insurance contract or an IRA designation. If the form names an ex-spouse, a deceased relative, or no one at all, the consequences flow from the contract and the default rules, not from the estate plan the family thought was in place.

What Florida’s Divorce Statute Does to Designations

Florida did build in one safety valve. Under Fla. Stat. § 732.703, a beneficiary designation in favor of a former spouse is generally void as of the dissolution of marriage, and the asset passes as if the ex-spouse predeceased, subject to important exceptions (including assets governed by federal ERISA law, where federal preemption can control). This statute resolves some accidents but not all, and it interacts with federal law in ways that catch people off guard.

Where Guardianship Transitions Complicate Everything

Disputes over joint and beneficiary assets often have roots that predate the death entirely, in a guardianship or in the period of decline that led to one. When an elderly person becomes incapacitated, account titling and beneficiary forms sometimes change in the final years, occasionally at the direction of the person who later inherits.

If a guardian was appointed, Florida law restricts the guardian’s power to alter the ward’s estate plan. A guardian generally cannot change beneficiary designations or create survivorship interests without court authorization, because doing so would let one person redirect inheritances away from others. After death, when a probate or trust administration opens, those late changes get scrutinized. The questions are familiar: Did the decedent have capacity when the account was retitled? Was there undue influence? Did a fiduciary breach a duty?

These are not abstract concerns. Contested guardianship-to-probate transitions are where survivorship presumptions get challenged head-on, and they require careful reconstruction of who controlled the assets, when, and under what authority. For a sense of how survivorship and designation fights are litigated in a comparable jurisdiction, this overview of tracks closely with the patterns we see in Florida courts.

The Practical Upshot: What Still Needs Probate

After you strip away the survivorship property, the trust assets, and the validly designated accounts, what remains in a Florida probate estate is usually:

• Real estate (including homestead in many cases) titled solely in the decedent’s name or as a tenancy in common;
• Bank and brokerage accounts in the decedent’s sole name with no POD or TOD designation;
• Vehicles, personal property, and business interests held individually;
• Any beneficiary-designated asset whose named beneficiary has died, was revoked, or was never validly designated, causing it to default into the estate.

Depending on the size and timeline of those assets, Florida offers formal administration, summary administration for smaller or older estates under Chapter 735, and disposition without administration in limited cases. The right vehicle depends on the numbers and the facts, which is why an early inventory of titling and designations matters so much.

Florida and New York handle these proceedings differently, and the differences are instructive even for Florida families. If you are comparing approaches, Morgan Legal’s explanation of the is a useful reference point, and our Florida team handles these matters locally through their .

Plan So the Right Assets Avoid Probate

The goal is not to push everything out of probate at any cost. Survivorship and beneficiary tools are powerful, but used carelessly they can disinherit a child, expose assets to a beneficiary’s creditors or divorce, or override a carefully drafted will. A coordinated plan aligns deeds, account titling, beneficiary forms, and the will or trust so they point in the same direction.

If you are reviewing how your property is titled, start with our guidance on wills and estate documents and how they interact with non-probate transfers, and see our overview of Florida probate administration for what happens after death. When titling and designations conflict, or when a guardianship preceded the death, getting an experienced attorney involved early can be the difference between a clean administration and years of litigation. Contact our office to map out which of your assets will pass through probate and which will not.

Frequently Asked Questions

Do jointly owned assets always avoid probate in Florida?

No. Only joint ownership with rights of survivorship (including tenancy by the entireties between spouses) avoids probate. Florida presumes a tenancy in common under Fla. Stat. § 689.15 unless survivorship is expressly stated, and a tenant in common’s share does pass through probate.

What happens if my beneficiary designation conflicts with my will in Florida?

The beneficiary designation generally controls. A will cannot override a valid life insurance, IRA, POD, or TOD designation. The will only governs assets that lack a surviving co-owner or valid beneficiary. This is why keeping designation forms current is as important as updating your will.

Does a Florida divorce cancel a beneficiary designation naming my ex-spouse?

Often, yes. Under Fla. Stat. § 732.703, a designation in favor of a former spouse is generally void upon dissolution of marriage, treating the ex-spouse as if they predeceased. Important exceptions exist, including assets governed by federal ERISA law, so the rule does not apply to every account.

Can a guardian change a ward's joint accounts or beneficiary designations?

Generally not without court approval. Florida limits a guardian’s authority to alter the ward’s estate plan, including creating survivorship interests or changing beneficiaries, to prevent inheritances from being redirected. Late-in-life changes made during incapacity are frequently challenged in probate.

What assets still require probate after survivorship and beneficiary transfers?

Typically assets the decedent owned alone with no co-owner and no valid beneficiary: sole-name real estate or tenancy-in-common shares, sole-name bank and brokerage accounts without POD/TOD, individually held vehicles and business interests, and any designated asset that defaulted into the estate because the named beneficiary predeceased or was revoked.