In Florida, Joint Tenancy With Right of Survivorship as an Estate Planning Tool to Avoid Probate: What Are The Risks in This Form of Florida Joint Ownership?

Posted By on December 26, 2013

Florida law allows two people (think a husband and wife, or a parent and child) the ability to own Florida property together as joint owners in several ways, one of which is known as the “joint tenancy with right of survivorship.” The Joint Tenancy With Right of Survivorship (JTWROS) is familiar to bankers, lawyers, CPAs, and especially estate planners, as a means that legally enables property in Florida to pass immediately to the surviving owner when the other owner dies.

check, banks,

Banks have respected Joint Tenants With Right of Survivorship accounts for many, many years.

Why Use a Joint Tenancy With Right of Survivorship in Florida?

Why is JTWROS used here in Florida? Because property that is held as Joint Tenancy With Right of Survivorship means there is no need for probate to transfer the property from one party to another. The asset transfers legally from one joint tenant to the sole ownership of the surviving, still living, joint tenant – Florida probate law doesn’t come into play.  Thus, this technique is a basic estate planning tool because it saves lots of people lots of trouble (and possibly money).

Usually, bank accounts between a husband and wife are held as JTWROS because when one spouse dies, the surviving widow or widower can freely use and access the account without the need to file a probate. This can be emotionally as well as financially beneficial to a spouse who has to cope with the loss of a loved one – bank accounts designated as JTWROS have been used for many years because of their ease of administration to address issues like these.

Florida banks, credit unions, and financial institutions all allow bank accounts held by ”joint tenants with right of survivorship” and usually there is no problem with a bank recognizing these accounts as being the sole property of the surviving tenant when one of the owners passes away.

Risks of Joint Tenancy With Right of Survivorship as an Estate Planning Tool: The Creditor Pops Up

Joint tenancy with right of survivorship, therefore, is a popular estate planning tool in the State of Florida. Before someone decides to use JTWROS as part of their estate plan, along with a Last Will and Testament or Trust, they need to know that there’s a risk involved with this form of ownership.

The big risk? The surprise of a creditor showing up, with a legal claim against the asset despite the fact that the other owner knew nothing about that creditor or their debt.

Creditors’ Claims Against Joint Tenancy With Right of Survivorship

Most creditors with outstanding debts will, of course, take steps to make sure that the debt owed gets paid…and one of the ways that the creditor will do this involves the creditor actually filing a lawsuit. If the creditor is successful and obtains a judgment from that lawsuit, it can use the judgment to collect against the assets of the debtor, including assets held as a Joint Tenant With Right of Survivorship — this can be done even if the other person owning the asset, had no idea that the debt existed (certain exceptions apply, including assets held by husband and wife).

Other Risks of a Florida Joint Tenancy With Right of Survivorship

There are other risks besides the surprise creditor when someone holds property in a Joint Tenancy with Right of Survivorship to someone else. One joint owner can legally take the money from the account and the other owner, the joint tenant, does not have to approve or even be aware that this has happened.

Another risk: by avoiding probate, a JTWROS may cause conflict among beneficiaries who were expecting the decedent’s estate would be spit according to a Last Will and Testament.

The Example of the Riches’ Bank Account in Wexler v. Rich: a Joint Tenancy Fight

A few years ago, a Florida man named Donald Rich died and his daughter from his 1st marriage, Linda Wexler, believed that Mr. Rich’s widow, the decedent’s second wife, was trying to take estate assets that rightfully belonged to Ms. Wexler.

Specifically, Ms. Wexler claimed that the widow had manipulated Donald Rich into moving money from a bank account where Ms. Wexler had access into another account, which Mr. And Mrs. Rich held as joint tenants with right of survivorship.

There was a huge courtroom battle over money held in the bank accounts, with the Florida appellate court deciding that the accounts were held as Joint Tenants With Right of Survivorship, reversing the trial court’s ruling, allowing the widow to be respected as the sole owner of the bank account.

Here is the Florida Court’s explanation (emphasis added):

The Supreme Court identified two ways to expressly disclaim the entities account status; first, “an express statement signed by the depositor that a tenancy by the entireties was not intended, coupled with an express designation of another form of legal ownership” and second, “if the financial institution affirmatively provides the depositors with the option on the signature card to select a tenancy by the entireties among other options, and the depositors expressly select another form of ownership option of either a joint tenancy with right of survivorship or a tenancy in common.” Id. at 60.

This case demonstrates the second type of express disclaimer contemplated by Beal Bank. Bank United provided the Riches with account agreements containing the option of a tenancy by the entireties, but that option was not selected. Rather, the agreements established joint tenancies with right of survivorship. The Riches signed the agreements after having had a chance to review them. Freedom of contract “includes freedom to make a bad bargain.” Posner v. Posner, 257 So.2d 530, 535 (Fla.1972). Florida adheres to the principle that a “party has a duty to 1101*1101 learn and know the contents of a proposed contract before he signs” it. Mfrs.’ Leasing, Ltd. v. Fla. Dev. & Attractions, Inc., 330 So.2d 171, 172 (Fla. 4th DCA 1976). Therefore, “[o]ne who signs a contract is presumed to know its contents.” Addison v. Carballosa, 48 So.3d 951, 954 (Fla. 3d DCA 2010). When the Riches signed the account agreements, they “expressly select[ed]” a form of account ownership other than a tenancy by the entireties, within the parameters set by the Supreme Court in Beal Bank.

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Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

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