Avoiding Probate Through Joint Ownership and the Exemption on Deeds Between Spouses
One way to avoid probate is through certain types of joint ownership or joint tenancy. When a married couple buys a property, they own it as a tenancy by the entirety, and the property will automatically pass to the surviving spouse without probate. Florida law was updated last year to allow for the exemption of payment of Documentary Stamp Taxes on deeds between spouses if the deed is recorded within 1 year of marriage. So, if you want to add your spouse to a homestead purchased before marriage, record the deed within one year of marriage to avoid the payment of Doc Stamp Taxes on the consideration paid or the balance due on existing mortgages on the property.
The changes to Florida Statutes Section 201.02 became effective on July 1, 2018, and before that documentary stamp taxes were due on all conveyances between spouses on the full consideration of the transfer or balance of mortgages on the property.
For either married or unmarried couples, setting up a joint tenancy is easy if it is done as a couple acquires real estate, automobiles, securities, bank accounts, or other valuable property, and these assets can then pass directly to the surviving spouse without the need for probate. If both owners of the property happen to die simultaneously, probate will not be avoided for any successor beneficiaries. Also, if joint ownership during life is not desired by the couple for other reasons, then the couple can set up a living trust to avoid probate to their spouse, significant other or their other beneficiaries. Please note that I never recommend that children be added to a deed as joint tenants, and this will be the subject of my next blog post.
If you’d like help avoiding probate or preparing a deed to add your spouse to homestead property, please contact me for a consultation – Lesly Vaillancourt, Longa Law Firm.