Does a Will Supersede a Deed in Florida?

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By Gary M. Landau, Esq.

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Does Will Supersede Deed in Florida? | Call (954) 979-6566

“Does a will supersede a deed in Florida?”

That’s the question our client Sarah asked as she sat in our Coral Springs, Florida, office. Having been named the beneficiary of her late elderly father’s home in his will, where he was the deed-holder, she was hoping she could put it on the market right away. She and her husband already have a home with a mortgage, where they live with their three children, so she was eager to sell the home quickly to avoid having to pay her father’s mortgage, too.

We let her know that in Florida, a will does not take the place of a deed. We explained that in order to sell the home it needed to go through the Florida probate process. Only then could she be named as the legal owner in order to sell the property.

Fortunately, since this was her father’s only asset and she was the only beneficiary, this was something we helped her do quickly.

We also explained to Sarah that had her father done his estate planning by adding her to the deed before he passed, probate could have been avoided. This inspired Sarah to think about her and her husband’s own estate planning process, including creating wills for themselves.

Understanding the relationship between a will and a deed and how they affect the distribution of assets after a person’s death was important for Sarah, and for all Florida residents.

This blog, from an experienced Coral Springs probate and real estate lawyer, explores the intricacies of wills and deeds and how they interact, providing important considerations for property owners. Whether you’re planning to draft your own will or to change your deed, or are managing the estate of a deceased relative, understanding how these legal documents work together will help you make financially smart decisions.

Continue reading to learn more, then contact us at (954) 979-6566 to schedule your free consultation by phone, in person, or on Zoom.

Understanding Wills and Deeds

What is a Will?

A will (formally called a last will and testament) is a legal document that is the foundation of every estate plan, as attorneys for wills make clear to every client. The will outlines the person’s directive for their asset distribution after their death, including money, property, and personal belongings. In a will, parents can also designate who they want as guardian for their minor children. In a will you also name the personal representative (PR; known in other states as the executor) who oversees the probate process after a death. Married couples should create separate wills, one for each spouse.

For a will to be valid in Florida, it must meet all the following criteria:

  • The person creating the will (the testator) must be over 18 or a court-emancipated minor.
  • The person creating the will must be of sound mind.
  • The will must be in writing.
  • The testator must sign the will in the presence of two witnesses, who must be competent adults. The testator and witnesses should also sign another document called a self-proving affidavit, which streamlines the probate process later.

What is a Deed?

A deed is a legal document that states who owns a specific real property, such as a house, condo, or commercial building. New deeds are generally created when ownership of real property passes from one party to another, or when someone is added as an owner.

There are several different types of deeds, including a warranty deed (generally used for a sale), a quitclaim deed (generally used to add a family member or other close person), a ladybird deed (often used as an estate planning tool), and others.

According to Florida law, all deeds must be in writing and signed in the presence of two witnesses. Deeds list crucial details about the property, including the names of the new owner and a legal description of the property. Deeds are recorded in the public record to provide notice of ownership.

A Florida Estate Planning Attorney Explains Key Points Concerning Wills and Deeds

In Florida, a deed does not automatically change just because a will leaves a property to someone. The estate has to go through the probate process; as part of that process, the beneficiary becomes the owner.

Properties can be conveyed while the person is still alive, of course. That requires them to sign a deed either adding the beneficiary to the deed or creating a separate kind of deed, known as an enhanced life estate deed (or a Lady Bird deed) that passes the property to them after their death.

Here are some points to consider regarding a deed:

  1. Ownership Transfer: If a property is transferred to a new party via a deed, the deed holder continues to have ownership of the property, regardless of what is stated in a will.
  2. Revocable Living Trust: If a property has been placed in a revocable trust and is no longer in the individual’s name, the terms of the trust–and not the will–control the distribution of the property.
  3. Probate: Property is passed to beneficiaries in a will through the probate process. It does not happen automatically upon the person’s death.

What Is an Enhanced Life Estate Deed (Lady Bird Deed)

There is a way for property to transfer immediately upon death. This is through what is known as an enhanced life estate deed, or a Lady Bird deed. This is a deed where the original owner continues to own the property during their lifetime; the Lady Bird deed automatically becomes effective immediately upon their death.

Our firm regularly drafts these types of deeds for our clients as part of their estate planning. Had Sarah’s father signed an enhanced life estate deed listing Sarah as the subsequent owner, his house would have immediately passed to her without needing to go through probate. Absent such a document, it could not.

How Wills and Deeds Interact in Florida

The Role of a Deed in Property Ownership

Per Florida law, a deed is the primary document that determines who owns the real estate. Once executed and recorded, a deed provides public notice of ownership.

A will does not override a deed in Florida. If someone lists a beneficiary of their property in their will but has deeded the property to someone else,  the deed takes precedence. The rationale is that the deed is a public record, providing transparency and protecting the rights of the property owner.

If someone wants to immediately transfer their property upon their death, creating an enhanced life estate deed, or Lady Bird deed, is the easiest way to do that.

Types of Deeds

Depending on the way ownership is conveyed on a deed, there are some types of ownerships that do not require probate when one of the owners passes away while the other is still alive.

One such arrangement is joint tenancy with the right of survivorship. Here, when one owner dies, their share of the property automatically transfers to the surviving owner(s) without going through probate. This transfer occurs regardless of what the decedent’s will states, because the deed has already established the ownership rights.

Another way is for a person living in a property to be listed as having a life estate. This means they do not become the owner of the property, but can choose to live in the home for the rest of their life after the owner passes away.

Florida Residents and Homestead Property Considerations

Florida’s homestead laws (which applies to an individual’s primary residence) also impact how some properties are handled in estate planning. The state treats homestead property differently from other assets where beneficiaries are designated in a will.

If the owner of a homestead property is married, the surviving spouse typically has the right to a life estate in the property, with the remainder going to the owner’s descendants. Alternatively, the spouse can choose to take a 50 percent interest in the property as “tenants in common” with the descendants.

Even if a will attempts to distribute the homestead property differently, these protections take precedence to protect the surviving spouse and any minor children.

Practical Advice for Estate Planning in Florida from an Experienced Lawyer

Review Property Titles

Our office regularly reviews the titles of properties, especially when circumstances change such as through marriage, divorce, or someone becoming elderly or ill. Taking the time to confirm that the deeds accurately reflect your current wishes can prevent conflicts between your will and Florida laws about deeds.

Consult an Estate Planning Attorney

Given the complexities involved in estate planning, consulting an experienced estate planning attorney is the most responsible decision you can make for the security of your family. A knowledgeable attorney can help you navigate the intricacies of Florida law and align your will and deed to achieve your desired outcomes. This process can involve drafting documents and advising on the best real property ownership structures.

The LAW OFFICE OF GARY M. LANDAU, P.A.: Your Estate Attorney Serving Coral Springs, Parkland, and South Florida

Have you been typing “estate lawyers near me?” into your search bar?

With more than 25 years of experience in our practice areas and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in Coral Springs, Parkland, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

Copyright © 2024. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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