The easiest way to tell if an asset must go through probate is whether it was held in your loved one's name only. Generally, any property under the sole ownership of someone who has passed away will have to go through probate, regardless of whether they had a will or died intestate. However, there are a few exceptions for bank accounts that could allow them to pass outside of probate.

How Bank Accounts Are Treated During Florida Probate

Bank Records FolderProbate is used to gather, record, and retitle assets owned by a deceased person so they can legally be passed on to new owners. Probate assets generally include assets that are in the decedent's own, individual name, and that account does not have a beneficiary designation. That said, the ownership documents of some properties—including bank accounts—allow another person to inherit directly if the principal owner dies without the necessity of probate.

Bank accounts that could avoid probate in Florida include:

  • Accounts with a named beneficiary. When you open a bank account, you can add a payable on death (POD) designations to your bank account so that when you die, the asset is distributed to that beneficiary upon your death.  This avoids probate.
  • Shared accounts between spouses. Florida probate laws give married couples the "right of survivorship" on jointly-held assets, meaning any property held in both spouses' names will pass to the remaining spouse without probate. 
  • Joint accounts. A bank account can be opened that allows people to own it as "joint tenants with rights of survivorship."  If one co-owner, the asset is owned by the survivor, all without probate.
  • Accounts naming a trust as beneficiary. If the deceased person set up a trust during their lifetime, they may have named the trust as a beneficiary on bank accounts, retirement accounts, life insurance, or other assets. If done correctly, all assets poured into the trust would pass outside of probate and into the immediate control of the successor trustee. We generally prefer to have assets flow to a living trust under most circumstances.

Should All of My Accounts Have Joint Owners?

A good estate planning attorney can discuss account ownership, jointly held beneficiaries, and more, in order to make sure your assets go to the right place upon your death. We usually DO NOT want all assets jointly held with someone else unless very specific reasons exist. Avoiding probate is generally a good goal, but there are good ways and bad ways to avoid probate!

Let Us Guide You Through Estate Administration

At DeLoach, Hofstra & Cavonis, P.A., we know how complex probate can be and the complications that make the process longer and more costly. Our Florida probate attorneys have years of experience helping relatives through estate administration as quickly and efficiently as possible.

To learn more, contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process.