What Happens When a Property Owner Dies Without a Will in Florida?

The death of a loved one is always a distressing time, but the stress can be compounded exponentially when the deceased owned real estate jointly with another person and left no Will. In Florida, what happens to the deceased co-owner’s share of the property is not a matter of simple assumption; it is dictated entirely by how the deed was titled.

If you are the surviving co-owner or a potential heir in the Sarasota area, understanding this distinction is crucial. As a probate attorney in Sarasota, I can tell you that failing to properly title property or create an estate plan can lead to forced sales, costly legal disputes, and unintended beneficiaries.

The first, and most critical, step is determining the legal status of the ownership.

The Critical Distinction: How Title Determines Succession

In Florida real estate, the property title governs whether the deceased owner’s share passes to the surviving owner automatically or must go through probate.

Joint Tenancy with Right of Survivorship (JTWROS)

If the deed explicitly states the property is owned as a Joint Tenancy with Right of Survivorship, the legal outcome is typically smooth and outside of probate.

Succession: The deceased co-owner’s interest automatically and immediately vests in the surviving co-owner(s) by operation of law.
Probate: The property avoids the probate process entirely, regardless of whether the deceased had a Will or not.
Action Required: The survivor usually only needs to record a certified copy of the death certificate in the County records to clear the title.

Tenants in Common (TIC)

If the deed does not specify a right of survivorship (or Tenants by the Entirety for married couples), Florida law defaults the ownership to a Tenancy in Common. This is where the lack of a Will creates serious complications.

Succession: The deceased co-owner’s percentage share does not automatically pass to the surviving co-owner. Instead, that share becomes an asset of the deceased person’s probate estate.
Probate: This share must go through the probate process to be legally transferred to the deceased owner’s heirs.
Uncertainty: The surviving co-owner finds themselves legally bound to new co-owners (the heirs) whom they may not know or agree with.

The Probate Requirement: Intestate Succession

When a deceased owner of a Tenants in Common property share dies without a Will (known as dying intestate), the Florida Probate Code dictates who inherits the share. These Intestacy Laws provide a rigid, one-size-fits-all hierarchy based on familial relation.

The distribution will follow strict statutory rules, which may include:

Surviving Spouse: If the decedent has a spouse and no descendants (or if all descendants are also descendants of the surviving spouse), the spouse inherits the entire share.
Descendants/Spouse Split: If the decedent leaves a spouse and descendants who are not descendants of the surviving spouse (e.g., children from a prior marriage), the share is split (e.g., 50% to the spouse and 50% to the descendants).
No Spouse or Descendants: The share passes to the decedent’s parents, then to siblings, and so on.

The key takeaway is this: the law, not your relationship with the deceased, decides who the new co-owners will be. This can introduce third-party family members into the co-ownership of your home or investment property.

Learn more about the probate process on our Probate Services page.

The Risk of Forced Sale and Costly Disputes

Once the deceased owner’s share is transferred to the legal heirs via probate, the surviving co-owner may face a difficult choice:

The Risk of a Partition Action

Any co-owner (the original survivor or the new heirs) has the legal right to ask a court to divide the property or force its sale. This is called a Partition Action.

If the property can be physically divided (rarely the case for a house), the court may do so.
Most often, the court will order the property to be sold and the proceeds divided among all the co-owners according to their ownership share.

This means that a co-owner’s failure to create a Will could force the surviving co-owner to sell their shared property against their wishes.

The Costs of Probate and Conflict

Probate is a court-supervised process that involves attorneys’ fees, court filing fees, and administrative costs, all of which are paid from the deceased owner’s estate (and thus, diminish the value inherited by the heirs). When a Will is absent, the appointment of a Personal Representative (Executor) can also become a contested issue, further prolonging the case.

Prevention is the Best Estate Planning

The only guaranteed way to prevent these outcomes is through proactive estate planning.

Use the Right Title: If you intend for your co-owner to inherit your share automatically, ensure the deed is titled as Joint Tenancy with Right of Survivorship or Tenancy by the Entirety (if married).
Execute a Will: Even if you choose a Tenants in Common arrangement, a valid Florida Will directs your share to the specific beneficiaries you choose, rather than relying on the rigid Intestacy Laws.
Utilize a Trust: For maximum control, a Living Trust can hold the property and clearly dictate who inherits the share, often bypassing probate entirely, regardless of the titling method.

Don’t wait for a tragedy to reveal the flaws in your property titling or lack of a plan.

Clarify co-ownership succession now, avoid legal chaos later.

Probate Services

This blog post is for general informational purposes only and does not constitute legal advice. Reading this article or contacting our office does not create an attorney-client relationship. Every legal situation is unique; you should consult with a qualified attorney regarding your individual circumstances. Nothing in this article should be considered tax advice. Our office does not provide tax advice, and you should consult with a qualified tax professional before taking any action that may have tax consequences.