Probate and Jointly Held or Beneficiary-Designated Assets in Florida

In Florida, most jointly held property and assets with a named beneficiary pass directly to the surviving owner or beneficiary at death and never enter probate. Probate only governs assets the decedent owned in their sole name with no survivorship feature and no payable-on-death designation. That single distinction—how title is held and whether a beneficiary is named—usually decides whether a family faces a court proceeding at all, and if they do, whether it can be handled as a small estate.

I practice probate here in Boca Raton, and the most common surprise I see is a family who assumes everything has to go through the courthouse, when in reality the house, the bank accounts, and the retirement plan have already transferred by operation of law. The opposite surprise happens too: someone is certain “it’s all joint” until we pull the account statements and find a CD or a brokerage account sitting in one name alone. This article walks through which assets skip probate in Florida, the statutes that control them, and the traps that pull a “nonprobate” asset back into a court file.

What “nonprobate” actually means under Florida law

The Florida Probate Code, found in Chapters 731 through 735 of the Florida Statutes, governs the administration of a decedent’s probate estate. The probate estate is a narrower thing than the gross estate you might list for estate-tax purposes. It includes only property that the decedent owned individually and that has no built-in mechanism for transferring at death.

Everything else—property with a survivorship right, a payable-on-death (POD) or transfer-on-death (TOD) designation, a beneficiary form, or ownership inside a trust—transfers under its own contract or title, not under the will and not under the intestacy statute. Lawyers call these “nonprobate transfers” or “will substitutes.” They are powerful precisely because they bypass the court entirely.

Two practical consequences follow. First, a will does not control nonprobate assets. You can write “I leave everything to my daughter,” but if a bank account names your son as POD beneficiary, the son takes the account regardless of what the will says. Second, the size and complexity of the probate estate—not the total wealth—is what determines whether you need formal administration, summary administration, or no administration at all.

Jointly held property: when survivorship controls

Joint ownership is the most familiar way an asset avoids probate, but Florida treats different forms of joint ownership very differently. The label on the account or deed matters enormously.

Joint tenancy with right of survivorship and tenancy by the entireties

When two people own property as joint tenants with right of survivorship (JTWROS), the survivor automatically becomes the sole owner at the first death. The asset passes outside probate. Married couples often hold real estate and accounts as tenants by the entireties, a form available only to spouses that carries the same survivorship feature plus strong creditor protection. At the death of one spouse, the survivor owns the whole, free of probate.

Florida is cautious about survivorship, though. Under Fla. Stat. § 689.15, survivorship is not presumed—a conveyance to two or more people creates a tenancy in common unless the survivorship right is expressly stated, with the exception of estates held by spouses, which are presumed to be tenancy by the entireties. The wording on the deed or signature card is therefore decisive. I have seen a deed that everyone assumed created survivorship turn out to be a plain tenancy in common, dragging a half-interest in a home straight into probate.

Joint bank accounts

Joint bank accounts are governed by Fla. Stat. § 655.79. A deposit account in the names of two or more people is presumed to be held with right of survivorship unless the signature card or account agreement says otherwise. So the surviving co-owner generally keeps the funds without probate. But “joint” on a statement is not always survivorship in substance—if an account was set up purely for convenience (an adult child added to help pay an elderly parent’s bills), the facts can be contested, and that fight sometimes lands in the probate file.

Tenancy in common: the joint form that does not avoid probate

This is the one that catches people. Two siblings who inherit a Boca condo and hold it as tenants in common each own a separate, devisable share. There is no survivorship. When one sibling dies, that sibling’s share passes through their estate—by will or intestacy—not to the co-owner. A common piece of “joint” real estate is exactly the kind of asset that ends up needing administration.

Beneficiary-designated assets that bypass probate

The second great category of will substitutes is the beneficiary designation—a contract term naming who receives the asset at death. These transfers are honored by statute and by the account contract itself.

• Life insurance. Proceeds payable to a named beneficiary are not part of the probate estate under Fla. Stat. § 733.808. They pay directly to the beneficiary.
• Retirement accounts. IRAs, 401(k)s, 403(b)s, and pensions pass to the designated beneficiary outside probate. The plan or custodial beneficiary form, not the will, controls.
• POD and TOD accounts. Payable-on-death bank accounts and transfer-on-death brokerage or securities accounts pass to the named person on proof of death.
• Annuities. Like life insurance, an annuity with a living named beneficiary pays directly.
• Florida homestead. A decedent’s protected homestead generally descends outside the reach of creditors and, under Fla. Stat. § 732.401, passes by constitutional rules of descent when there is a surviving spouse or minor child—though a probate court order is usually still needed to confirm the homestead status and clear title.

There is one critical condition running through all of these: the designation only works if a valid beneficiary survives. Name no one, name “my estate,” or name a beneficiary who has already died with no contingent named—and the asset drops back into the probate estate. Stale beneficiary forms after a divorce, a death, or the birth of a child are the single most frequent reason a “nonprobate” account ends up in court. (Florida’s revocation-on-divorce statute, Fla. Stat. § 732.703, automatically voids many designations naming a former spouse, which can itself send funds back to the estate if no alternate is named.)

Why this matters for small estates and summary administration in Boca Raton

Our firm focuses on small-estate and summary-administration cases, and nonprobate planning is the heart of that work. Florida offers three lighter-touch paths, and which one is available depends almost entirely on what’s left in the sole-name probate estate after the survivorship and beneficiary assets peel away.

1. Disposition without administration (Fla. Stat. § 735.301). For very small estates—essentially where the only assets are exempt property plus non-exempt personal property worth no more than the final funeral expenses and last 60 days of medical bills—the court can authorize release of assets to whoever paid those bills, with no personal representative appointed. It’s an informal, low-cost request.
2. Summary administration (Fla. Stat. §§ 735.201–735.2063). Available when the value of the probate estate (less exempt property) is $75,000 or less, or when the decedent has been dead more than two years. No personal representative is appointed; the court enters an order distributing the assets. This is the workhorse for modest Boca estates.
3. Formal administration. The full proceeding, with a personal representative, used when the probate estate exceeds the summary threshold or when complications—contested claims, litigation, unknown creditors—require it.

The takeaway is that good titling does double duty. It moves assets to the right people faster, and it keeps the residual probate estate under the $75,000 line so a family can use summary administration instead of a months-long formal proceeding. A couple with a $900,000 net worth held in tenancy by the entireties, a POD account, and an IRA might leave a probate estate of a few thousand dollars—or nothing.

If your matter has a connection to New York—a decedent who owned property in both states, or a New York will—the analysis shifts to that state’s surrogate’s court, and our colleagues handle and can explain how the compare to Florida’s summary and formal tracks. For Florida administrations, our handles the full range.

Common traps that pull nonprobate assets into court

Over the years a handful of recurring problems account for most of the cases where a family thought probate was avoided and learned otherwise:

• The estate as beneficiary. Naming “my estate” (or leaving the form blank) on insurance or retirement assets forces those funds through probate—often defeating the entire plan and exposing the money to creditors it would otherwise have avoided.
• Predeceased beneficiaries with no contingent. If the primary beneficiary dies first and no alternate is named, the asset reverts to the estate.
• A new asset acquired after the planning. A CD opened last year in one name only, a car titled solely (Fla. Stat. § 319.22 governs vehicle transfer at death), an inherited account—any of these can quietly create a probate estate.
• Deeds that say “joint” but aren’t. Because Florida does not presume survivorship outside marriage, a deed missing the magic survivorship language creates a tenancy in common.
• Homestead confusion. Homestead frequently passes outside probate for creditor purposes, yet a court order is still typically required to confirm the protection and marketable title—so the property is not always as “automatic” as families expect.

A short inventory—pulling every account statement, deed, and beneficiary form—answers nearly every probate question before it becomes a problem. We routinely do this triage at the first meeting so families know within a single sitting whether they’re looking at no administration, summary administration, or something larger. You can review related material on our Florida probate page and on wills and estate documents, or reach us through our contact page.

The bottom line

Whether an asset goes through Florida probate is rarely about how much it’s worth—it’s about how it’s titled and whether a living beneficiary is named. Jointly held survivorship property and beneficiary-designated accounts transfer on their own. Sole-name assets with no designation do not, and they define which small-estate procedure, if any, your family will use. Getting the titles and beneficiary forms right today is the cheapest, most reliable way to keep a Boca Raton estate simple tomorrow.

This article is general information, not legal advice. Beneficiary and survivorship rules turn on specific facts; consult a Florida probate attorney about your situation.

Frequently Asked Questions

Does a joint bank account in Florida avoid probate?

Usually, yes. Under Fla. Stat. § 655.79, a multiple-owner deposit account is presumed to carry a right of survivorship unless the account agreement states otherwise, so the surviving co-owner keeps the funds without probate. The exception is a ‘convenience’ account or one where the agreement disclaims survivorship, which can be challenged and may end up in the probate file.

What happens to a life insurance or retirement account with no named beneficiary?

It typically falls into the probate estate. Beneficiary designations only bypass probate if a valid beneficiary survives. If the form names the estate, is left blank, or names someone who died with no contingent beneficiary, the proceeds pass through probate and become reachable by creditors they would otherwise have escaped.

Do beneficiary-designated assets count toward Florida's summary administration limit?

No. Summary administration under Fla. Stat. §§ 735.201–735.2063 is available when the probate estate, minus exempt property, is $75,000 or less (or the decedent has been dead over two years). Assets that pass by survivorship or beneficiary designation are not part of the probate estate, so they don’t count toward that threshold.

Is a tenancy-in-common share subject to probate in Florida?

Yes. Tenancy in common has no right of survivorship, so a deceased co-owner’s share passes through their estate by will or intestacy rather than to the other owner. Because Florida does not presume survivorship outside marriage (Fla. Stat. § 689.15), ‘joint’ real estate without express survivorship language is often a tenancy in common that requires administration.

Does Florida homestead property go through probate?

Protected homestead generally descends outside the reach of creditors and passes by constitutional rules under Fla. Stat. § 732.401 when there is a surviving spouse or minor child. However, a probate court order confirming homestead status is usually still needed to clear marketable title, so it is not entirely automatic.