Probate and Jointly Held or Beneficiary-Designated Assets in Florida

In Florida, jointly held property and beneficiary-designated accounts generally pass outside of probate, transferring automatically to the surviving owner or named beneficiary by operation of law rather than through the probate court. These are called non-probate assets. But the word “generally” carries real weight here: a defective designation, an estate-named beneficiary, a severed joint tenancy, or a contested guardianship can pull these assets right back into the probate estate.

For families in Palm Beach County, this distinction is where a lot of money and a lot of conflict live. I have watched estates that looked simple on paper unravel because nobody understood whether a bank account was “joint with right of survivorship” or merely a convenience account. The rules are knowable. Below is how they actually work in Florida, and where the trouble tends to start.

What “non-probate” actually means in Florida

Probate is the court-supervised process of validating a will (or applying intestacy law when there is none), paying creditors, and distributing what remains. Florida’s probate framework lives in Chapters 731 through 735 of the Florida Statutes and in the Florida Probate Rules. Property that flows through that process is the probate estate.

Non-probate assets sidestep all of that. They transfer the instant of death through a private contract or a survivorship feature already baked into the title. No judge signs off. No personal representative is appointed to move them. The most common categories in Florida are:

• Jointly titled real estate and accounts held with rights of survivorship.
• Payable-on-death (POD) bank accounts and transfer-on-death (TOD) brokerage accounts.
• Life insurance proceeds with a living named beneficiary.
• Retirement accounts — IRAs, 401(k)s, annuities — with a valid beneficiary on file.
• Revocable living trust assets, which pass under the trust’s terms, not the will.
• Homestead property protected under Article X, Section 4 of the Florida Constitution, which descends outside the ordinary probate estate when a surviving spouse or minor child is involved.

That last category trips up nearly everyone, so I’ll return to it.

Jointly held property: survivorship is not automatic

Many people assume that putting two names on a deed or account guarantees survivorship. In Florida, it does not. The form of co-ownership controls the result.

The three ways Floridians hold title together

• Tenancy in common. Each owner holds a separate, divisible share. When one owner dies, that share goes through their probate estate — it does not pass to the co-owner. Florida law actually presumes a tenancy in common unless survivorship language is clearly stated.
• Joint tenancy with right of survivorship (JTWROS). The survivor takes the whole. This must be expressed; it is not assumed. For real property, the deed should say so.
• Tenancy by the entirety. Available only to married couples, this is the strongest form. It carries automatic survivorship and shields the property from one spouse’s individual creditors. Florida courts presume that property a married couple acquires jointly is held this way.

The practical lesson: if a deed or account agreement is silent on survivorship and the owners are not married, the decedent’s interest is probably a probate asset. I have seen families confidently tell me “Mom’s house passes to my sister automatically” when the deed showed a plain tenancy in common — meaning half the house was headed straight into probate.

Convenience accounts are a separate trap

Florida recognizes the “convenience account” under section 655.80, Florida Statutes — an account where a second name is added only so that person can help pay bills, with no intent to make a gift at death. If the bank paperwork establishes a convenience account, the funds belong to the estate, not the helper, regardless of whose name is on the card. Disputes over whether an account was truly survivorship or merely a convenience are among the most common probate fights I see in Palm Beach courtrooms.

Beneficiary-designated assets: the contract usually wins

Life insurance, annuities, IRAs, 401(k)s, POD accounts, and TOD securities all transfer according to the beneficiary form on file with the institution. That contract generally overrides whatever the will says. A will leaving “all my property equally to my three children” does not redirect a life insurance policy that names only one child. The policy controls.

Florida does build in some guardrails:

• Divorce voids ex-spouse designations. Under section 732.703, Florida Statutes, a beneficiary designation in favor of a spouse is automatically void upon divorce for many asset types, unless the document or court order says otherwise. Federal ERISA plans are an important exception, so check.
• The slayer statute. Section 732.802 bars anyone who unlawfully and intentionally kills the decedent from taking as beneficiary.
• Spousal rights. Certain retirement plans require spousal consent to name someone else, and Florida’s elective share (sections 732.201–732.2155) can reach some non-probate assets to protect a surviving spouse.

When a beneficiary designation fails — and probate swallows the asset

Here is the part clients underestimate. A designation only keeps an asset out of probate if it is valid and points to a living person or entity. It fails, and the asset reverts to the probate estate, when:

1. No beneficiary is named, or the form was never completed.
2. The only named beneficiary predeceased the owner and there is no contingent beneficiary.
3. The estate itself is named as beneficiary — common with older life insurance policies, and a guaranteed ticket into probate.
4. The designation is ambiguous or legally defective, forcing the court to interpret it.

When any of these happens, the proceeds drop into the probate estate, become reachable by creditors, and get distributed under the will or intestacy. A $400,000 IRA that should have passed privately can suddenly fund estate debts because a contingent beneficiary line was left blank.

Florida homestead: the asset that refuses to behave

Homestead property deserves its own warning. Under Article X, Section 4 of the Florida Constitution and section 732.401, a homestead generally cannot be devised freely if the owner leaves a surviving spouse or minor child. It descends by constitutional formula — typically a life estate to the spouse with a remainder to descendants, or a one-half interest if the spouse elects.

Homestead passes outside the reach of most creditors, which makes it feel “non-probate.” Yet families still usually need a court order — a Petition to Determine Homestead Status — to confirm the protection and clear title. So homestead occupies a strange middle ground: protected from creditors, often requiring probate court involvement to perfect. Treat it as its own animal, not as ordinary joint property.

Where contested guardianship collides with non-probate planning

This is the angle I care most about, because it is where preventable damage happens. When an aging Floridian loses capacity and a guardianship is opened, the guardian gains control over the ward’s property — and that control can quietly rewrite who inherits.

Consider how a guardianship can disturb assets everyone assumed were “safe”:

• Re-titling during incapacity. A guardian, often with court approval, may liquidate or retitle accounts to pay for the ward’s care. A POD designation evaporates the moment the underlying account is closed. The named beneficiary inherits nothing because the asset no longer exists in that form.
• Severed joint tenancies. If a guardian or co-owner withdraws funds or partitions jointly held property, the survivorship feature can be destroyed before death.
• Allegations of undue influence. When a beneficiary change was made shortly before a guardianship petition — or during a period of contested capacity — those designations become prime targets for litigation once the ward dies and the matter shifts into probate.
• Guardian-to-personal-representative friction. The same family conflict that drove a guardianship dispute rarely ends at death. It migrates into the probate estate, now aimed at the beneficiary forms.

Florida’s guardianship law (Chapter 744) requires court approval before a guardian takes many significant actions affecting the ward’s estate plan, precisely because the temptation to favor one branch of a family is real. But approval is not the same as protection for the eventual beneficiaries. A guardianship that transitions into probate is fertile ground for , and the playbook for challenging suspect transfers is similar across states.

A practical illustration

A widowed father in Palm Beach names his daughter as POD beneficiary on a $250,000 brokerage account. Years later he develops dementia, and his son petitions for guardianship. As guardian, the son — with court authorization to fund care — moves the brokerage funds into a new account titled in the guardianship. When the father dies, the daughter expects $250,000 outside probate. Instead the original account is gone, the POD designation died with it, and the remaining guardianship funds pour into the probate estate to be split under the will. The daughter’s “non-probate” inheritance just became a contested probate matter. None of this required wrongdoing — only a misunderstanding of how fragile these designations are.

Coordinating the will, the trust, and the beneficiary forms

The single most useful thing a Floridian can do is treat the estate plan as one coordinated system. The will, any revocable trust, and every beneficiary form should tell the same story. Mismatches are where litigation breeds.

A short checklist I give Palm Beach clients:

1. Pull every beneficiary form — insurance, IRA, 401(k), annuity, POD, TOD — and read them, don’t assume.
2. Name a contingent beneficiary on each, never just a primary.
3. Avoid naming “my estate” as beneficiary unless your attorney recommends it for a specific reason.
4. Confirm whether real estate and accounts truly carry survivorship language.
5. Review designations after every divorce, death, birth, or move to Florida.
6. If incapacity is on the horizon, build a durable power of attorney that addresses beneficiary changes, so a future guardian’s hands are appropriately tied.

For families weighing how these assets interact with the probate process more broadly, it helps to understand that probate itself comes in different forms and intensities — a point our colleagues explain well in their overview of the . Florida’s summary administration and formal administration tracks (Chapters 735 and 733) function on the same logic: the smaller and cleaner the probate estate, the faster and cheaper the process. Keeping assets correctly designated is what keeps that estate small.

You can also review our own Florida probate overview and our wills page to see how these pieces fit together, and the team at handles these transitions statewide.

When to bring in a probate attorney

Call counsel early if any of these describe your situation: a beneficiary predeceased the owner, an account names “the estate,” a deed’s survivorship status is unclear, homestead is in play, or a guardianship preceded the death. These are the fact patterns that turn a quiet transfer into a contested probate. The cost of a one-hour consultation is trivial against the cost of litigating a $250,000 account after the fact. If you are in Palm Beach County and unsure which of your assets are probate and which are not, reach out before, not after, the conflict starts.

Frequently Asked Questions

Do jointly held assets always avoid probate in Florida?

No. Only co-ownership that includes a right of survivorship—joint tenancy with right of survivorship or tenancy by the entirety for married couples—passes automatically to the survivor. Florida presumes a tenancy in common when survivorship language is absent and the owners are not married, meaning the decedent’s share goes through probate. Convenience accounts under section 655.80 also belong to the estate, not the co-signer.

What happens to a beneficiary-designated account if the beneficiary already died?

If the only named beneficiary predeceased the owner and no contingent beneficiary was named, the designation fails and the asset reverts to the probate estate. It then becomes reachable by creditors and is distributed under the will or Florida’s intestacy laws. This is why naming a contingent beneficiary on every account is essential.

Can a Florida guardian change or undo beneficiary designations?

A guardian under Chapter 744 generally needs court approval to take significant actions affecting the ward’s estate plan, but in funding the ward’s care a guardian may liquidate or retitle accounts. Doing so can extinguish POD, TOD, or survivorship features, redirecting assets the original beneficiary expected to receive. These changes often spark probate litigation after the ward’s death.

Does a will override beneficiary designations and joint titling in Florida?

Usually not. Valid beneficiary designations and survivorship titling are contracts and operate by law independently of the will. A will only controls assets that fall into the probate estate. Exceptions include Florida’s elective share for surviving spouses and the automatic voiding of ex-spouse designations after divorce under section 732.703.

Is Florida homestead property a probate or non-probate asset?

Homestead is a hybrid. Under Article X, Section 4 of the Florida Constitution and section 732.401, it is protected from most creditors and descends by constitutional formula when a spouse or minor child survives, so it is not freely devisable. Yet families typically still need a probate court order—a Petition to Determine Homestead Status—to confirm protection and clear title.