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Is probate required if a person dies owning assets titled jointly with a person other than their spouse?

| Oct 16, 2013 | Uncategorized |

For any assets which the deceased person owned jointly with a person other than their spouse, the decision whether probate is necessary depends on the way title or ownership is held. If the assets are title with ownership as “Joint Tenants with Rights of Survivorship” or “JTWROS” then no probate is necessary.

When a person dies and owns assets jointly with a person other than their spouse, a Florida attorney will advise that the decision whether probate is necessary depends on the way title or ownership to those assets is held. With non-spouse owners, there is a presumption that joint property is held as what’s called “tenants in common” or “TIC.” With such jointly owned TIC property, each non-spouse owner owns an undivided one-half interest. If one owner dies, then that person’s one-half interest must be probated in order to transfer ownership out of the deceased person’s name.

In contrast, where assets are titled jointly with someone other than your spouse but which have the designation “JTWROS” or “Joint Tenants with Rights of Survivorship” no probate is necessary. These assets pass directly to the surviving co-owner. However, for non-spouse joint owners, the designation of JTWROS must be expressly stated in the title documentation-it is not presumed.

For an example, assume that John and Mary are not married. They own real estate together titled as “John, as single man, and Mary, a single woman.” This is the classic TIC type of ownership; John and Mary each own an undivided one-half interest. If John dies, John’s estate will need to be probated in order to deal with John’s one-half interest in the property. However, if title is listed as “John and Mary, as JTWROS” then when John dies, Mary becomes the sole owner. No probate is necessary. All that Mary may want to consider doing is to record John’s death certificate in the county where the real estate is located. This lets the world know that John is deceased and that title is now vested in Mary.

Because of the importance of titling assets, it is often advisable to consult an experienced Florida attorney before proceeding.

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