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Example - Ohioan with Florida Property - Jurisdictional Differences


Married Couple Holds Title in Ohio Without Survivorship Deed

If a married couple acquires property in Ohio during their marriage that was conveyed into both of their names with no survivorship language in the deed (assume no TOD designation is later recorded - nor the filing of a survivorship deed before the death of the first owner), then upon the death of the first spouse, probate would be needed in Ohio to transfer the deceased spouse's interest into the name of the surviving spouse.


Further Example: Husband and Wife are married. They purchase a home in Ohio. The deed says "to Husband and Wife" [no survivorship provisions]. Upon the death of Husband, Wife (or whoever the executor/administrator of the estate is) would need to probate Husband's estate to get a certificate of transfer to transfer the Husband's 1/2 interest in the property. Ohio law indicates that the 1/2 interest in the property is a probate asset requiring probate proceedings.  This could easily be avoided - probate could have been avoided in this situation with either a Survivorship Deed or a TOD Designation.

Married Couple Purchases Florida Home Without Survivorship Deed - But it IS Entireties Property Under Florida Law

​Now, assume that the same couple also purchases vacation property in Florida during their marriage and there is no survivorship language in the deed. Florida law will presume this to be entireties property. As long as they remain married (to each other) at the time of the first to pass and the surviving spouse files an affidavit of continuous marriage indicating a few basic facts, then the surviving spouse can acquire the deceased spouse's interest in that property, thus avoiding probate for that property in Florida.

Further Example: Husband and Wife purchase a vacation home in Florida in both of their names. The Wife passes away. The property is presumed to be entireties property. If they were married at the time of Wife's death, then Husband can file an Affidavit of Continuous Marriage. The property will be transferred to the Husband's name. Husband may want to consider options to avoid probate upon his death. 

*Note - it's completely possible to have probate in ONE jurisdiction but not the other. It would appear odd for an Ohio resident to avoid probate in Florida but not in Ohio and have the exact same language in both deeds - but, this shows you the importance of understanding the laws of each state where real property is owned!


Yes - It Is Possible To Have Probate Administration In More Than One State At The Same Time

For the sake of complicating this a bit more – if both properties fail to avoid probate, then the estate will need to be probated in both states (i.e. a domiciliary administration in the state of residence and ancillary administration in the other state where property is owned). A double hit of inconvenience – why not avoid this?  

Understanding real estate is important - as in this situation, the Ohio residents do not avoid probate where in Florida they would. 

​Understand, probate would not be avoided with a survivorship deed or entireties property upon the death of the surviving spouse. Planning for what happens upon the death of the surviving spouse should be considered. 

Every situation is unique - this is just an example. There is nearly an unlimited number of situations that can arise. 

Consult an attorney to discuss your specific and/or unique real estate situation.

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