“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:
- 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.
- 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.
- 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
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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://www.garylandau.com/