The Missing "Magic Words" on Your Florida Deed That Could Force Your Home Into Probate

Quick Answer: Tenancy in Common vs. Joint Survivorship

If two people are listed on a property deed without specific "magic words," the state assumes the ownership is a Tenancy in Common. This means each person owns an undivided 50% interest. If one owner passes away, their half does not automatically go to the surviving owner. Instead, it must go through the probate court to be passed to heirs. To ensure the property automatically transfers to the surviving owner without probate, the deed must specifically include the words "joint tenants with rights of survivorship."

The Common Deed Mistake That Leads to Probate Court

One of the most common issues we see in our practice involves families who believe their property is protected, only to find out too late that a simple clerical error is forcing their home into probate.  

Many people assume that if two names (like a mother and a child) are on a deed, the property will automatically pass to the survivor if one of them dies. Unfortunately, if the deed simply lists the names of the individual owners, that is not how it works.

Why "Tenancy in Common" Triggers Probate

When a deed does not contain specific survivorship language, the law assumes it is a Tenancy in Common.

• What it means: Each person listed on the deed owns a portion of the property (typically a 1/2 undivided interest, meaning they own their own 50%).

• The danger: If you own just 50% of something, when you pass away, your half does not automatically go to the other person listed on the deed. It actually has to go through the court process known as probate in your estate, and then it gets passed down to your heirs at law or the beneficiaries in your written will.

The "Magic Words" You Need to Avoid Probate

To avoid probate between two owners, you need a Joint Survivorship Deed. With this type of deed, it is as if each owner owns the property as a whole. When one owner passes away, the other owner simply owns the property 100%. No court action or probate is needed.

However, what is less known is that you must specifically state the "magic words" on the deed:

"Joint tenants with rights of survivorship" or "With full rights of survivorship"

If the deed does not specifically state these words, it isn't a joint tenancy. We often see situations where someone assumes they have a joint survivorship deed because they had a professional—sometimes even an attorney—prepare it. But because those exact magic words were left off, the surviving owner discovers after the fact that they have to navigate the probate system.

How to Fix Your Deed

If you check your deed and realize you have a Tenancy in Common, and the property is owned outright with no mortgage, this is a relatively easy fix. Because you are already the owners and you are not transferring the property to anyone new, you have two simple options:

1. Execute a Quit Claim Deed

You can simply execute a new deed, most commonly in the form of a Quit Claim Deed. In this scenario, you and your co-owner act as the grantors (giving the property) and the grantees (receiving the property). When you list yourselves as the grantees on the new deed, you simply ensure that the phrase "as joint tenants with rights of survivorship" is included.

2. Request a Corrective Deed

If your deed was recently prepared and the missing language was simply a clerical error, you can often go back to the individual or company who prepared the deed. You can request that they file a Corrective Deed to fix the mistake and establish the joint tenancy.

Next-Level Florida Estate Planning: The Lady bird Deed

Fixing your deed to include rights of survivorship is a great first step to protect the surviving co-owner. But if you want to take your estate planning a step further, you can execute a Lady bird Deed.

Once you are established as joint tenants, a Lady bird Deed allows you to list one or more beneficiaries who will automatically inherit the property after both of you pass away. This adds an essential layer of protection to keep your property entirely out of probate down the road.

Get Help from the "Non-Stuffy" Attorneys at atCause Law Office

Do not wait until it is too late to find out what kind of deed you have. An attorney can easily help you review and correct your deed to ensure your property passes exactly how you intend.

If you have questions pertaining to deeds, estate planning, elder law, or probate in Florida, do not hesitate to reach out to our team at atCause Law Office. We make the process simple, clear, and stress-free.  

Contact our office today to Schedule a Free Consultation and secure your family's future!