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Do I need an Affidavit of Heirship or Joint Tenancy to transfer land ownership?

Do I need an Affidavit of Heirship or Joint Tenancy to transfer land ownership?

Full question:

My Mom died in PR in Jan 26 but left 2 lands in Gainesville, Florida which I have the deeds. I only have 1 brother and we are the only survivors. Do I need the Affidavit of Heirship or Joint Tenancy with Right of Survivorship to change the land to our names and ensure that if one of dies, the land belongs to the other one.

Category: Wills and Estates
Subcategory: Probate
Date: 04/07/2025
State: Florida

Answer:

When a person dies, their assets, including real property, typically go through the probate process. If there is no valid will, an administrator is appointed to manage the estate's distribution after filing a petition with the court in the county where the deceased lived. The court issues letters testamentary or letters of administration, allowing the administrator to collect assets and pay debts. The executor must notify creditors, inventory the estate, and distribute assets according to the will.

If the estate's value is below a certain threshold, it may qualify for a simplified process. In Florida, estates valued under $75,000 can often use a small estate administration process instead of formal probate. For real property, the executor or administrator would execute a deed to transfer ownership.

In Florida, if the estate's value does not exceed the total of preferred funeral and medical expenses, a small estate affidavit can be filed. This affidavit, once approved by the court, allows heirs to collect the deceased's debts and assets. It must include details about the estate's assets, liabilities, distributees, and family history to establish heirship.

Joint tenancy allows two or more individuals to own property together, with the surviving tenant automatically inheriting the property upon the death of one. This type of ownership bypasses probate. However, joint tenancy can be severed, which would change the ownership structure.

Tenants in common own an undivided interest in the property, but there is no right of survivorship. If a tenant in common dies, their interest must go through probate to be transferred to their heirs.

In your case, if you and your brother are the only heirs, you may consider either the small estate affidavit or establishing joint tenancy to ensure the property passes to the surviving sibling without going through probate.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

How long do you have to transfer a deed after death?

In Florida, there is no specific time limit to transfer a deed after death. However, it is advisable to transfer the property as soon as possible to avoid complications. If the estate goes through probate, the process can take several months or even years, depending on the circumstances. Prompt action can help ensure a smoother transition of ownership.

Is right of survivorship automatic in Florida?

Yes, in Florida, the right of survivorship is automatic for properties held in joint tenancy. This means that if one owner dies, their share of the property automatically passes to the surviving owner without going through probate. It's important to ensure that the property is properly titled as joint tenancy to benefit from this feature.

How do you transfer ownership of a house in Florida after death?

To transfer ownership of a house in Florida after death, you typically need to go through probate unless the property is held in joint tenancy or a trust. If probate is required, the executor will file the will with the court, and after debts are settled, a deed can be executed to transfer the property to the heirs. Alternatively, a small estate affidavit may be used if the estate qualifies.

What is the best way to transfer property after death?

The best way to transfer property after death in Florida depends on the estate's circumstances. If the deceased had a will, the property usually goes through probate. If the estate is small, a small estate affidavit may be an option. For properties held in joint tenancy, ownership automatically transfers to the surviving tenant, bypassing probate.

How do you transfer the deed of a house when someone dies in Florida?

To transfer the deed of a house when someone dies in Florida, you generally need to go through probate if there is a will. The executor will file necessary documents with the court. If there is no will, an administrator will be appointed. After settling debts, a new deed can be created to transfer ownership to the heirs. If the property is in joint tenancy, it automatically transfers to the surviving owner.

How do I transfer property to a family member tax free in Florida?

In Florida, you can transfer property to a family member tax-free through a gift, provided it does not exceed the annual exclusion limit set by the IRS. As of 2023, this limit is $17,000 per recipient. For larger transfers, consider using a trust or consult a tax advisor to understand potential tax implications and strategies for minimizing taxes.