Probate Avoidance Concerns

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When real property is owned by an individual and that person dies, the property may need to be probated, unless the deed properly and legally conveys the property to someone else upon the death of the individual. Probate is a judicial procedure that determines who the heirs are of the deceased individual, how creditors of the estate will be paid, and who will receive the estate’s assets.

Many times probate is avoided when the deeds state “joint tenants with rights of survivorship” or “tenants by the entirety” for married couples. However, just because the proper language is on the deed, the deed will still need to be properly reviewed to ensure that the conveyance was legally compliant (for example, if an owner is married and that person or the person’s spouse or dependents live on the property, the spouse must also execute the deed or if the couple got a divorce, the ownership automatically is changed to “tenants in common” without any rights of survivorship, even if they subsequently get married again – in either case the parties would need to execute a new deed to ensure the property will not have to be probated). Additionally, if a person decides to convey their property to a trust, the trust document will need to be closely reviewed to ensure the Florida Constitution protection of the spouse and minor children are not violated.

If a person individually owns a property and then gets married, a conveyance to add the spouse will result in a payment of documentary stamp tax if the property encumbered by a mortgage. There may also be Federal gift tax issues should one or both of the married couple are non-US citizens.

There are other methods to avoid a probate action if that is a goal of the owners and therefore it is recommend to contact Barry L. Miller, P.A. at 407-423-1700 or email us at for a consultation if you, or someone you know, has legal questions concerning this matter.

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