Why Asset Titling Can Override Your Will in Florida
Many Florida residents spend time carefully drafting a will, only to discover that it does not control how some of their most valuable assets are distributed. The way an asset is titled, or who is listed as its beneficiary, often determines where it goes after death, regardless of what the will says.
Overview
A will in Florida only controls what is known as probate assets. Probate assets are property owned solely in your name at the time of death, with no other transfer instructions attached to them. Many assets, however, are not probate assets at all. These are called non-probate assets, and they pass directly to a designated person through a separate legal mechanism that operates independently from the will. Understanding the difference between these two categories is essential to making sure your estate plan actually works the way you intend.
Payable on Death Accounts and Bank Accounts
Bank accounts and investment accounts in Florida can be set up with a payable on death designation, often called a POD designation. When an account has a POD beneficiary listed, that person automatically receives the funds in the account after the owner's death. This happens directly through the bank, without going through probate court and without reference to the will. Florida Statute 711.50 through 711.512 governs these account designations. If a will says one thing but the POD form on file says another, the POD form controls who receives that specific account.
Joint Tenancy With Right of Survivorship
Real estate, vehicles, and financial accounts can also be titled as joint tenancy with right of survivorship, often abbreviated as JTWROS. When property is held this way, the surviving owner automatically becomes the sole owner the moment the other owner dies. This transfer happens immediately and does not pass through the probate process. It also does not pass through the will, even if the will contains specific instructions about that same property. Florida Statute 732.401 confirms that this type of jointly titled property is generally treated separately from the probate estate.
Retirement Accounts and Life Insurance Beneficiaries
Retirement accounts such as IRAs and 401k plans, along with life insurance policies, are distributed according to the beneficiary designation on file with the account provider or insurance company. These designations operate independently of the will. If someone updates their will years after setting up a retirement account, but never updates the beneficiary form, the outdated beneficiary designation still controls. This can create outcomes that directly conflict with the person's most recent wishes as expressed in their will, simply because a form was never updated.
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Reviewing how your accounts and property are titled is just as important as writing or updating your will. For related reading, see our Wills and Estate Planning page on karialaw.com.
Frequently Asked Questions
The POD beneficiary listed on the account generally receives the entire account, regardless of what the will states. The will's instructions for that specific account would not apply because the account passed outside of probate through the POD designation.
Not naming a beneficiary means the account becomes part of your probate estate and would then be distributed according to your will. However, many people prefer using beneficiary designations because they allow assets to pass quickly without waiting for probate to conclude.
It is a good practice to review these designations whenever you experience a major life event, such as marriage, divorce, the birth of a child, or the death of a previously named beneficiary, and also whenever you update your will.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Laws vary and individual circumstances differ. Consult a licensed Florida estate planning attorney for advice specific to your situation. Tejus Karia, Esq. is a member of The Florida Bar.
- If my will says my bank account should be split between my children, but only one child is listed as the POD beneficiary, what happens?
- Can I avoid this problem by simply not naming any beneficiaries on my accounts?
- How often should I review my beneficiary designations and account titling?