Do Bank Accounts Go Through Probate in Florida?

Whether a bank account must go through probate in Florida depends entirely on how the account is titled and whether it includes a beneficiary designation. Some bank accounts pass automatically to a named beneficiary or surviving joint owner at death, bypassing the probate process completely. Others, particularly accounts held solely in the decedent's name without any beneficiary designation, become part of the probate estate and must be administered through the court.

At the Law Offices of Albert Goodwin, PA, we help families in Miami-Dade County and throughout Florida understand which accounts require probate and how to access bank funds as efficiently as possible after a loved one's death.

When Bank Accounts Do Go Through Probate

A bank account goes through probate when it is held solely in the decedent's name with no payable-on-death (POD) beneficiary, no joint owner with right of survivorship, and no trust designation. In this situation, the funds in the account are considered probate assets and can only be accessed by the personal representative appointed by the court.

Common scenarios where bank accounts require probate include:

• The decedent had a checking or savings account in their name alone with no POD beneficiary on file.
• The decedent had a certificate of deposit (CD) titled solely in their name.
• A POD beneficiary was named but predeceased the account owner, and no contingent beneficiary was designated.
• The decedent removed a joint owner or beneficiary designation before death and did not replace it.
• The bank account was part of a business entity that is subject to probate administration.

When a bank account is a probate asset, the bank will freeze the account upon receiving notice of the account holder's death. The funds will not be released to anyone until a personal representative is appointed by the court and presents letters of administration (also called letters testamentary) to the bank. The personal representative then uses the funds to pay estate debts and expenses before distributing the remainder to beneficiaries according to the will or Florida's intestacy laws.

When Bank Accounts Do Not Go Through Probate

Payable-on-Death (POD) Designations

A payable-on-death designation is the most common way to keep a bank account out of probate. When the account holder designates a POD beneficiary, the funds transfer directly to that beneficiary upon the account holder's death. The account holder retains full control of the account during their lifetime and can change or remove the POD designation at any time.

To claim a POD account after the account holder's death, the beneficiary typically needs to present:

• A certified copy of the death certificate
• Valid government-issued photo identification
• The bank's required claim forms

The bank will verify the beneficiary's identity and the death certificate, and then release the funds. This process usually takes a few days to a few weeks, compared to months or longer for probate. POD funds are not subject to probate creditor claims in most circumstances, though they may be subject to estate tax if the total estate exceeds applicable thresholds.

Joint Accounts with Right of Survivorship

When a bank account is held jointly with right of survivorship, the surviving account holder automatically becomes the sole owner of the account when the other holder dies. The surviving owner simply needs to notify the bank of the death and provide a certified copy of the death certificate. The bank will then remove the deceased person's name from the account, and the surviving owner continues to have full access to the funds.

Florida law presumes that a joint account with right of survivorship belongs entirely to the surviving account holder at the first holder's death, regardless of which holder contributed the funds. However, this presumption can be challenged in certain circumstances, particularly if there is evidence that the account was set up for convenience purposes only and not with the intent to make a gift to the joint holder.

Trust Accounts

Bank accounts held in the name of a revocable living trust do not go through probate. When the trust creator dies, the successor trustee takes over management of the trust assets, including any bank accounts titled in the trust's name. The successor trustee can access the funds by presenting the trust document (or a certificate of trust), a certified death certificate, and their identification to the bank.

Trust accounts offer the added benefit of allowing the trust creator to impose conditions on distributions, such as staggering payments to young beneficiaries or protecting assets from a beneficiary's creditors. This level of control is not available with POD designations or joint accounts.

Transfer-on-Death (TOD) Accounts

While TOD designations are more commonly associated with brokerage and investment accounts, some financial institutions also offer TOD designations for bank accounts. Like POD designations, TOD accounts transfer directly to the named beneficiary at death without probate. The process for claiming a TOD account is similar to claiming a POD account.

Special Situations

Tenancy by the Entirety Accounts

In Florida, married couples can hold bank accounts as tenants by the entirety. This form of ownership provides that the account passes automatically to the surviving spouse at the first spouse's death, similar to joint tenancy with right of survivorship. Additionally, tenancy by the entirety provides significant creditor protection: a creditor of only one spouse generally cannot reach funds held in a tenancy by the entirety account. This protection makes it a particularly valuable form of ownership for married couples in Florida.

IRA and Retirement Accounts at Banks

Individual retirement accounts (IRAs) held at banks pass to the named beneficiary and do not go through probate. The beneficiary claims the account by contacting the bank with a death certificate and identification. However, if no beneficiary is designated, or if the designated beneficiary predeceased the account holder with no contingent beneficiary named, the IRA may default to the estate and require probate. Beneficiary designations on retirement accounts should be reviewed regularly, especially after major life events such as marriage, divorce, or the death of a previously named beneficiary.

Safe Deposit Boxes

While not technically a bank account, safe deposit boxes present a related question. In Florida, accessing a decedent's safe deposit box requires specific legal authority. A surviving joint lessee can access the box, but if the box is in the decedent's name alone, a court order or letters of administration are typically required before the bank will permit access. The contents of the box may include important estate planning documents, such as the original will, which must be located and filed with the court.

Steps to Claim Bank Account Funds After Death

The steps for claiming bank account funds depend on the type of account:

For POD, TOD, or Joint Accounts (No Probate Required)

1. Obtain certified copies of the death certificate from the Florida Bureau of Vital Statistics or the county health department.
2. Contact the bank and notify them of the account holder's death.
3. Visit a branch with your identification and a certified death certificate.
4. Complete any claim forms required by the bank.
5. The bank will process the transfer, typically within a few business days to a few weeks.

For Accounts That Require Probate

1. File a petition for administration with the circuit court in the county where the decedent resided. In Miami-Dade County, this is filed with the Probate Division of the Eleventh Judicial Circuit.
2. Once the court appoints a personal representative, obtain certified copies of the letters of administration from the clerk.
3. Present the letters of administration, a certified death certificate, and your identification to the bank.
4. Open an estate bank account and transfer the decedent's funds into it.
5. Use the estate funds to pay valid creditor claims, administration expenses, and taxes before distributing the remainder to beneficiaries.

Planning to Keep Bank Accounts Out of Probate

If you want to ensure your bank accounts do not go through probate, consider these probate avoidance strategies:

• Add POD beneficiaries to all bank accounts. This is the simplest and most cost-effective approach. Contact your bank and ask to add a POD designation. Be sure to name contingent beneficiaries in case your primary beneficiary predeceases you.
• Title accounts in your revocable living trust. If you have a revocable living trust, retitle your bank accounts in the name of the trust. This provides more control over distributions than a POD designation.
• Review designations regularly. Life changes such as marriage, divorce, the birth of a child, or the death of a beneficiary should prompt a review of all account designations to ensure they still reflect your wishes.
• Coordinate with your overall estate plan. Bank account designations should be consistent with your will and trust to avoid unintended results. An experienced attorney can help ensure all components of your plan work together.

Contact the Law Offices of Albert Goodwin

If you need to access a loved one's bank accounts after death or want to plan your own accounts to avoid probate, the Law Offices of Albert Goodwin, PA can help. We assist with all aspects of probate administration and estate planning in Miami-Dade County and throughout Florida.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.