How to Transfer Property After Death in Miami, Florida

When a property owner dies in Florida, the real estate they owned does not automatically transfer to heirs or beneficiaries. A legal process must be followed to move title from the deceased owner to the rightful recipients. The method used depends on how the property was titled, whether the decedent had a will or trust, and what planning tools were put in place before death. Understanding these options is essential for families dealing with inherited property in Miami-Dade County and throughout South Florida.

Transferring Property Through Probate

The most common way property changes hands after death in Florida is through probate. When the decedent held real estate solely in their own name and did not use any transfer-on-death mechanism, the property becomes part of the probate estate. The court appoints a personal representative who has the legal authority to manage, sell, or distribute the property to the beneficiaries named in the will or, if there is no will, to the heirs determined by Florida's intestacy statutes.

In a formal probate administration, the personal representative receives letters of administration from the court, which serve as proof of their authority. Once debts and obligations of the estate are satisfied, the personal representative executes a personal representative's deed transferring the property to the beneficiary. This deed must be recorded with the county clerk in the county where the property is located.

For smaller estates, Florida allows summary administration under F.S. 735.201 when the gross value of the estate does not exceed $75,000 or the decedent has been dead for more than two years. In summary administration, the court issues an order distributing the assets directly without appointing a personal representative, and that order can be used to transfer title.

Lady Bird Deeds (Enhanced Life Estate Deeds)

A lady bird deed, also known as an enhanced life estate deed, is one of the most popular estate planning tools in Florida for avoiding probate on real property. Under a lady bird deed, the property owner retains a life estate with the full power to sell, mortgage, or otherwise dispose of the property during their lifetime. Upon the owner's death, the property automatically passes to the named remainder beneficiaries without the need for probate.

The key advantages of a lady bird deed include:

• The property owner maintains complete control during their lifetime, including the right to revoke the deed or sell the property without the beneficiaries' consent
• The transfer avoids probate entirely
• The property receives a stepped-up tax basis at the owner's death under current federal tax law
• The property is not considered a gift for Medicaid purposes during the owner's lifetime

After the property owner dies, the remainder beneficiary simply records a certified copy of the death certificate along with the existing lady bird deed at the county clerk's office. No court proceeding is required.

Transfer on Death Deeds in Florida

Florida enacted its Transfer on Death Deed statute, F.S. § 732.4017, effective in 2024. This relatively new tool allows property owners to designate a beneficiary who will receive the property upon the owner's death, similar to a payable-on-death designation for bank accounts.

A transfer on death deed must be signed by the owner, witnessed by two witnesses, notarized, and recorded in the county where the property is located during the owner's lifetime. The deed is revocable at any time before the owner's death. Upon death, the beneficiary records an affidavit along with a certified death certificate to complete the transfer.

The TOD deed provides a straightforward, low-cost way to transfer property outside of probate. It does not affect the owner's ability to sell, mortgage, or otherwise deal with the property during their lifetime.

Joint Tenancy with Right of Survivorship

When two or more people own property as joint tenants with right of survivorship, the surviving owner or owners automatically inherit the deceased owner's share upon death. This transfer occurs by operation of law and does not require probate.

To complete the transfer of record, the surviving joint tenant records a certified copy of the deceased joint tenant's death certificate along with an affidavit of survivorship in the county where the property is located. This updates the public records to reflect that the surviving owner now holds full title.

It is important to note that Florida does not presume joint tenancy. The deed must specifically state that the owners hold title as "joint tenants with right of survivorship" or use equivalent language. If the deed simply names two owners without specifying the type of tenancy, Florida law presumes a tenancy in common, which does not carry a right of survivorship and will require probate to transfer the deceased owner's share.

Tenancy by the Entirety

Married couples in Florida who acquire property together are presumed to hold title as tenants by the entirety. Like joint tenancy with right of survivorship, tenancy by the entirety includes an automatic right of survivorship. When one spouse dies, the surviving spouse becomes the sole owner of the property without probate.

To clear the title, the surviving spouse records a certified copy of the death certificate with the county clerk's office. This form of ownership also provides asset protection benefits during the owners' lifetimes, as creditors of only one spouse generally cannot reach entireties property.

Trust Transfers

If the decedent placed their property into a revocable living trust during their lifetime, the property can be transferred to the trust beneficiaries without probate. Upon the trustmaker's death, the successor trustee named in the trust document takes over management of the trust assets, including real property.

The successor trustee distributes the property according to the terms of the trust. To transfer title, the successor trustee executes a trustee's deed conveying the property from the trust to the beneficiary. The trustee's deed is recorded with the county clerk along with supporting documentation such as the trustmaker's death certificate and relevant excerpts from the trust document.

Trust transfers are private, efficient, and avoid the delays and costs associated with probate. However, the trust is only effective for property that was actually transferred into it during the owner's lifetime. Property left outside the trust will still need to go through probate unless another transfer mechanism applies.

Recording Requirements in Miami-Dade County

Regardless of the method used to transfer property after death, the transfer must be properly recorded with the Miami-Dade County Clerk of the Courts to be effective against third parties and to update the public land records. Recording requirements include:

• Document formatting: All documents must meet Florida recording standards, including minimum font size, proper margins, and a prepared-by statement identifying who prepared the document
• Recording fees: Miami-Dade County charges recording fees based on the number of pages. As of recent schedules, the first page is $10.00 and each additional page is $8.50
• Documentary stamp tax: Depending on the type of transfer, Florida documentary stamp tax may apply at a rate of $0.70 per $100 of consideration. Transfers pursuant to a will or intestacy are generally exempt, but other transfers may trigger the tax
• Surtax: Miami-Dade County imposes an additional discretionary surtax of $0.45 per $100 on documents transferring real property, subject to certain exemptions

It is advisable to work with an attorney who is familiar with Miami-Dade recording requirements to ensure that all documents are properly prepared and recorded.

Choosing the Right Method

The best method for transferring property after death depends on the circumstances. Probate is unavoidable when no prior planning was done and the property was held solely in the decedent's name. For those who plan ahead, lady bird deeds, transfer on death deeds, joint tenancy, and revocable trusts each offer ways to avoid probate and simplify the transfer process for loved ones.

Each method has its own advantages and potential drawbacks. Lady bird deeds and TOD deeds are simple and inexpensive but may not be suitable for complex family situations. Joint tenancy can create unintended tax or creditor exposure. Trusts offer the most flexibility but require more upfront planning and cost.

Contact a Florida Property Transfer Attorney

If you need to transfer property after the death of an owner, or if you want to plan ahead to make the process easier for your family, the Law Offices of Albert Goodwin can help. We assist families throughout Miami-Dade County and South Florida with probate, estate planning, and real property transfers. Call us at 786-522-1411 or email [email protected] to schedule a consultation at our Coral Gables office.