Asset Ownership: Why It Matters in Estate Planning
When thinking about estate planning, one of the most important — and often overlooked — issues is how your assets are owned. (Keep in mind that doing nothing is also a form of estate planning.) The way assets are titled determines what happens if you are healthy, incapacitated, or deceased, and whether your family will face guardianship or probate proceedings.
Understanding asset ownership is a foundational step in creating an effective estate plan.
How Assets Can Be Owned
At a basic level, assets can be owned individually or jointly. Each form of ownership has different legal consequences.
Individually Owned Assets
An asset is individually owned when it is titled solely in your name.
While You Are Alive and Well
You have full control over the asset and may sell it, gift it, or encumber it as you wish. Certain assets, however, may require your spouse’s consent to transfer — most notably your homestead property (your primary residence).
If You Become Incapacitated
If you have not executed estate planning documents such as a trust or durable power of attorney, your family will likely need to initiate a guardianship proceeding to manage your assets.
If You Die
If no estate planning has been done, or if you only have a Last Will and Testament, your heirs will generally need to go through probate to transfer ownership of the asset.
In short: Individually owned assets commonly end up in guardianship or probate if proper planning has not been done.
Jointly Owned Assets
Assets may also be owned with one or more other people. There are several common forms of joint ownership.
Tenancy by the Entireties (TBE)
This form of ownership is available only to married couples. Typical examples include:
“John Doe and Mary Doe, as tenants by the entireties”
“John Doe and Mary Doe, husband and wife”
Key Characteristics
Both spouses’ signatures are generally required to transfer the asset.
Some financial accounts may allow either spouse to use the funds independently.
Incapacity
If one spouse becomes incapacitated, a guardianship may be required — particularly for real estate — to manage or transfer the asset.
Death
Upon the death of one spouse, the asset automatically passes to the surviving spouse without probate.
Probate becomes necessary only after the death of the surviving spouse.
Joint Tenants with Right of Survivorship (JTWROS)
This form of ownership can be used by any two or more individuals, not just spouses (for example, siblings or business partners). The survivorship language, “as Joint Tenants with Right of Survivorship” or JTWROS, must be clearly stated in the title.
Key Characteristics
All owners typically must sign to transfer the asset.
Financial accounts may allow any owner to use the funds.
Incapacity
A guardianship may be required to manage or dispose of jointly owned real estate if an owner becomes incapacitated.
Death
When one owner dies, the asset automatically passes to the surviving owner(s) without probate.
Probate is required only after the death of the last surviving owner.
There may be more than two owners. If one dies, the remaining owners inherit the asset equally.
Tenancy in Common
With tenancy in common, each owner holds a separate ownership interest, which may be equal or unequal.
Examples
“John Doe and Mary Doe, as tenants in common” (each owns 50%)
“John Doe, as to a 70% interest, and Mary Doe, as to a 30% interest”
If percentages are not specified, ownership is presumed to be equal. If the words, “tenants in common” is not in title, the law presumes that the tenants own the asset as tenants in common.
Incapacity
If an owner becomes incapacitated, a guardianship may be required to manage or transfer that owner’s interest.
Death
Unlike other forms of joint ownership, there is no right of survivorship.
The deceased owner’s interest must go through probate, unless it has been properly addressed through estate planning.
The surviving owners do not automatically inherit the deceased owner’s share unless provided for by a will, trust, or under Florida law.
Why This Matters
How your assets are titled can determine:
Whether your family must go through guardianship
Whether probate can be avoided
Who ultimately inherits your property
A well-designed estate plan starts with a careful review of asset ownership and ensures that your assets are structured to meet your goals.
