April 21, 2024
What Is Joint Tenants with Right of Survivorship in Florida

by Denis Kleinfeld

Joint tenancy is a common way to own property in Florida. People like married couples, partners not married, or family often use it. It’s important for planning what happens to the property when someone passes away.

Key Takeaways:

  • Joint tenancy is a common form of property ownership in Florida.
  • It has estate planning implications and should be discussed with an attorney.
  • Joint tenants with right of survivorship can avoid probate upon death of one owner.
  • However, it may override provisions in a will and limit inheritance options.
  • Consider other forms of ownership, such as tenants by the entirety or a revocable living trust.

Joint Tenancy With Right of Survivorship (JTWROS)

Joint tenancy with right of survivorship, or JTWROS, is a way for two or more people to own a property together. If one owner dies, their share of the property goes to the others without needing probate. This can save time and money after someone’s death.

But, it’s not a full probate solution by itself. Without other planning, like setting up a trust, this property could still go through probate. It’s smart to talk with a lawyer to make sure your property goes where you want without probate.

It’s also key to know that a JTWROS property won’t always follow your will. Even if the will says the home should go to someone else, it goes to the surviving owners. Make sure your estate plan fits with a JTWROS property if you choose this way to own.

Advantages of Joint Tenancy With Right of Survivorship

  • Probate avoidance: Save time and costs by not needing probate to pass on the property.
  • Automatic transfer of ownership: The property automatically goes to the other owners when someone dies.
  • No need for a court order: The process is straightforward without court involvement.
  • Equal ownership rights: Every owner gets to fully use and enjoy the property as if it’s their own.

Disadvantages of Joint Tenancy With Right of Survivorship

  • Lack of control: You can’t do big things with the property without everyone’s agreement.
  • Liability concerns: Debts all owners have could affect the property, possibly causing issues.
  • Joint tenancy overrides will: Your will might not decide who gets the property if it’s owned this way.
  • Complex relationship dynamics: Decisions can be hard when there are different owners, especially if they’re not closely related.

In the end, JTWROS is a good option to keep your property out of probate. Still, it’s important to weigh its benefits and downsides. Talking with a lawyer is a wise step to see if this fits your situation well.

It Doesn’t Matter What Your Will Says

In a joint tenancy with right of survivorship, property goes to the surviving owner when one passes. This happens even if a will says otherwise. If you want someone else, like your child, to get the property, think again. JTWROS beats anything a will tries to do.

By setting up a joint tenancy with right of survivorship, you’re switching ownership automatically. So, the property will go to the surviving owner no matter what’s in your will.

This rule causes trouble if you want the house to go to a different person. Say you prefer your kids from a past marriage to get the house. A joint tenancy could squash that. Even a clear will can’t change this.

Wills are key but don’t overrule a joint tenancy’s survival rights. You may want to talk with a Florida estate lawyer. They can help you know your options better.

A good lawyer makes navigating inheritance, probate, and estate planning easier. They’ll make sure your wishes about assets division are carried out. They help protect what you care about.

Understanding the Impact

Even if your will clearly states that you want the property to go to someone other than the surviving joint owner, the law may not recognize those wishes if the property is held in joint tenancy with right of survivorship.

Creating a joint tenancy means granting a right of survivorship. Property goes to the surviving owner, skipping the probate and will’s instructions along the way.

Your loved ones, such as children, might not get the property. It’s vital to think through joint tenancy. Be sure your estate plan matches what you want.

Table: Comparing Property Inheritance Options

| | Joint Tenancy with Right of Survivorship | Tenants in Common | Revocable Living Trust |
|————————|—————————————–|——————-|———————–|
| Probate Avoidance | Yes | No | Yes |
| Distribution Control | No – Survivorship Rights Override Will | Yes | Yes |
| Protection from Creditors | Potentially Limited | Potential Risk | Possible |

The table shows joint tenancy avoids probate but might limit who gets what versus other choices. It’s key to look at how each option suits your needs. A knowledgeable estate attorney can guide you to choices that match your plans and safeguard your interests.

Creditor Claims Can Force Sale of the Property

Being in a joint tenancy means you share ownership with someone else. Both owners should know about the risks if one gets into debt. If a creditor takes legal action against one owner, the property might have to be sold. This is to pay off the debt or settle the legal issue.

It’s a tough situation for both owners. Losing the property is bad enough. Plus, selling it can lead to paying more taxes, like capital gains taxes if you made a profit.

Before you decide on joint tenancy, think about the risks. It’s a good idea to compare the pros and cons. This will help you see if it fits your situation.

“Joint tenancy is not without its risks, and creditor claims are one of the key factors to consider. It is crucial to consult with a qualified attorney to understand the potential implications and explore alternative ownership structures that may better suit your needs.”

Here’s an example to help you understand:

Joint Tenant Creditor Claim Property Sale
John Yes Forced
Sarah No N/A

John faces a creditor claim, leading to the property being sold. Meanwhile, Sarah is fine because she doesn’t have any creditor claims against her.

Always think hard about the risks of joint tenancy. Talking to an expert in property law and estate planning is smart. They can help you make the best decisions to keep your assets safe.

Medicaid Eligibility May Be Negatively Affected

Sharing property with an adult child can be risky for Medicaid. If you make them a co-owner without pay, it’s like you gave them a gift. This might affect your chance to get Medicaid, especially for long-term care.

Medicaid looks at your money and things you own to decide if you can get help. If you own too much, you might not qualify. It’s smart to talk to a lawyer who knows about Medicaid and property to be safe.

If you give something away without getting fair pay, Medicaid might think you’re trying to hide money. This could stop you from getting help when you need it. There are tough rules against this.

If you share property with your child but they didn’t pay for it, Medicaid might see it as a gift. They will check back five years to see if you did anything like this. If you did, there could be penalties and you might not get Medicaid for a while.

Each state has its own Medicaid rules. Talking to a lawyer that understands Medicaid law can help you follow the rules and protect your benefits.

“Owning property jointly with an adult child without proper compensation can be considered an uncompensated gift, potentially jeopardizing eligibility for Medicaid benefits for long-term care.”

Getting legal advice can help you set up how you own property in a way that’s better for Medicaid. Making a trust could give you more control over the property and still follow Medicaid rules.

Being smart about Medicaid early is key. Knowing how property ownership affects your benefits and getting advice can help protect what’s important to you.

Next, we will explore another form of property ownership in Florida, specifically tailored to married couples: “Tenants by the Entirety.”

Pros of Joint Ownership with Adult Child Cons of Joint Ownership with Adult Child
Shared property expenses Risk of uncompensated gift and Medicaid eligibility
Potential for joint decision-making Potential for strain on the parent-child relationship
Ability to pass property directly to the child Liability for the child’s debts or legal issues
Flexibility in using the property Potential loss of control over property

Tenants By the Entirety

Tenants by the entirety is for married couples in Florida. It has some great benefits. These include creditor protection, no need for probate, and keeping the property safe for both spouses.

This type of ownership sees each spouse as the sole owner of the whole property. They both have full rights and need agreement for any big decisions. Also, if one spouse passes, the home goes fully to the other, skipping probate.

Tenants by the entirety gives a special shield against debts. If one spouse owes money, the home can’t be taken to pay off those debts. This is especially handy if one spouse gets into financial trouble.

It also avoids probate. This ‘red tape’ of moving a deceased person’s things to their loved ones can be skipped. Owning the home this way makes things simpler when passing it to the surviving spouse.

And there’s protection in case of a divorce too. Neither spouse can sell or give away the home alone. This ensures a fair division of the property if the marriage ends.

This type of ownership is favored by many Florida couples for its perks. However, it’s wise to talk to a Florida estate planning lawyer first. They can help you see if this is the best fit for you both.

Tenants by the Entirety

Tenants in Common

Tenancy in common is a great choice for a property with more than one owner. In this type, each owner has a specific part of the property. They can do things like sell or mortgage their part all by themselves.

When an owner dies, their part doesn’t automatically go to the others, like in joint tenancy. Instead, it goes through probate. The owner’s will or the law decides what happens to their share.

Owners can have equal or different shares, depending on what they’ve agreed on. This makes it flexible for each owner to decide on their part of the property.

In tenants in common, each owner has full control over their share. They can sell or mortgage it without needing the others to agree.

But, there are risks with this type of ownership. For instance, if one owner has debts, the whole property might have to be sold to pay them off.

Example of Tenants in Common Ownership:

Imagine three friends owning a property together – Alice, Bob, and Carol. Each has a third of the ownership. Alice then sells her third to David.

Now, Bob and Carol still have their 33% shares. David has Alice’s former 33% without needing approval from the others.

This is very different from joint tenancy, where the property passes to the survivors. Tenants in common offer more control over each owner’s share.

Advantages and Disadvantages of Tenants in Common Ownership:

Advantages Disadvantages
Flexibility in transferring or selling individual shares Subject to probate, potentially causing delays and costs
Each owner maintains control over their share Risk of forced property sale due to judgments or creditor claims against one owner
Allows for unequal ownership shares based on investment contributions Requires agreement among owners for decision-making related to the property

Revocable Living Trust May Be A Better Option

A revocable living trust is a powerful tool for managing property ownership in Florida. It lets you skip the probate process, which can be slow and expensive. This helps save time and money, making asset transitions smoother for your loved ones.

One big plus of a revocable living trust is the control it gives you. As the trust’s creator, you keep full control of the property while you live. You can sell the property or switch who gets it without needing anyone else’s approval. This control means you can adjust your plans as life changes, making sure your wishes are met even if you can’t decide later on.

A living trust also comes with a major tax benefit. Property in the trust gets revalued when the creator dies. This ‘step-up in basis’ can lower the amount of taxes your beneficiaries might have to pay a lot.

Why Choose a Revocable Living Trust?

  • Probate Avoidance: It lets you avoid the probate process completely, enhancing the handover of your assets to your family.
  • Control of Property: Keeps property management, sale, and passing it to others easy while you’re alive.
  • Flexibility: Adjust your trust to fit any changes and meet your goals for estate planning.
  • Step-Up in Basis: The trust’s property gets a new value after the creator dies, possibly saving on taxes for those who inherit it.

So, a revocable living trust is both flexible and powerful for owning property and planning your estate in Florida. By weighing the pros of a living trust, you can protect, manage, and share your assets just as you wish.

Revocable Living Trust

Conclusion

It’s key to pick the right way of owning property in Florida for estate planning. Joint tenancy with right of survivorship helps avoid probate. But, it has some risks and limits.

Getting advice from a Florida estate planning lawyer is wise. They can help choose the best ownership type for you. They’ll make sure you understand everything and protect your rights.

FAQ

What is joint tenancy with right of survivorship in Florida?

Joint tenancy with right of survivorship means two or more people own a property. When one owner dies, the surviving owner gets their share automatically.

Does it matter what my will says if I am in a joint tenancy with right of survivorship?

If you’re in a joint tenancy with right of survivorship, your will doesn’t matter. The property goes to the surviving owner, not as your will says.

Can creditor claims force the sale of a property owned by joint tenants?

If one owner owes money, the property they own with others can be sold to pay the debt.

How can Medicaid eligibility be affected by property ownership with an adult child?

If you give your property to an adult child for free, it might hurt your chances of getting Medicaid for help with long-term care. Always talk to a lawyer to make sure you understand the rules.

What is tenants by the entirety?

Only married couples in Florida can have tenants by the entirety. It protects against debts, avoids probate, and keeps one spouse safe if the other has a debt.

What is tenants in common?

Multiple investors often choose tenants in common. Each person owns a part of the property. When someone dies, their share might need to go through probate.

Is a revocable living trust a better option for property ownership in Florida?

A revocable living trust can be a smart pick in Florida. It avoids probate, lets you change your mind about who gets the property, and may save on taxes.

What should I consider when choosing the right form of property ownership in Florida?

It’s important to weigh the pros and cons of different property ownership types in Florida. Think about joint tenancy, tenants by the entirety, and living trusts. An estate planning attorney in Florida can give you good advice.