How to Fix Your Deed and Avoid Probate: Tenancy in Common vs. Joint Survivorship

Many homeowners intend for their property to automatically pass to their co-owner when they pass away. However, a common estate planning pitfall leaves surviving family members stuck in probate court. If your property is owned outright with no mortgage, but your deed does not include specific legal phrasing, your co-owner might not inherit your share automatically.

Here is what you need to know about property deeds, the magic words required to avoid probate, and how to fix a deed that was filed incorrectly.

Tenancy in Common vs. Joint Survivorship

If you simply list the names of individual owners on a deed, the law assumes the ownership type is a Tenancy in Common. To ensure the property automatically passes to the surviving owner, the deed must be structured for Joint Survivorship.

Here is a breakdown of how the two types of ownership differ:

Feature	Tenancy in Common	Joint Survivorship
Ownership Share	Each person owns a specific, undivided portion (e.g., a 50% or 1/2 interest).	Each owner owns the property as a whole.
What happens upon death?	The deceased owner's 50% share goes through the court probate process.	The property automatically passes down to the surviving owner(s).
Who inherits?	Heirs at law or written will beneficiaries.	The other owner(s) listed on the deed.
Court Action Required?	Yes (Probate).	No.

The "Magic Words" You Need to Avoid Probate

It is a common misconception that simply having two names on a deed means the surviving owner will automatically inherit the property. Even if a professional or an attorney prepared your deed, you might not have joint survivorship.

To successfully avoid probate and ensure the property passes directly to the surviving owner, the deed must explicitly include specific "magic words" when listing the grantees (the people receiving the property).

Required phrasing includes variations like:

• Joint owners with rights of survivorship

• Own jointly with rights of survivorship

• Joint tenants with rights of survivorship

• Joint tenants with full rights of survivorship

If your deed lacks these specific phrases, it is legally considered a Tenancy in Common.

How to Fix Your Deed

If you currently have a Tenancy in Common deed but want to change it to Joint Tenants with Rights of Survivorship, the fix is relatively straightforward since you do not need to add or remove any owners. You have two primary options:

1. Execute a Quit Claim Deed

Because both owners currently hold a 50% interest, you can execute a new deed together. Most commonly, this is done using a Quit Claim Deed.

• You and your co-owner will list yourselves as the grantors (the people giving the property away).

• You will also list yourselves as the grantees (the people receiving the property).

• Next to your names as grantees, you must include the magic words: as joint tenants with rights of survivorship.

2. File a Corrective Deed for a Clerical Error

If you hired a professional or a company to prepare the deed and the omission of survivorship rights was a mistake, you can pursue a Corrective Deed. You will need to contact the individual or company who originally drafted the document and ask them to file a corrective deed to fix the clerical error.

Next-Level Planning: The Lady Bird Deed

Once you have successfully updated your deed to Joint Tenants with Rights of Survivorship, you can add an additional layer of estate planning.

You and your co-owner can execute a Lady Bird Deed. This specific type of deed allows you to enlist one or more beneficiaries who will automatically own the property only after both of the joint tenants pass away.

Need Florida Estate Planning Help?

Deed corrections and estate planning are highly specific legal processes, and an attorney can easily help you complete these steps to ensure everything is handled correctly.

If you are located in Florida and have questions pertaining to deeds, estate planning, elder law, or probate, reach out to atCause Law Office.