What Happens to My Car When I Die?
One of the most common questions a Florida probate attorney gets is what happens to a person’s car when they pass away. Every state handles this differently, and Florida has a statute that specifically addresses it: section 319.28. Generally, this statute states that in Florida, ownership of a deceased person’s car will pass to their heirs outside of probate, but there is a bit more to it than that. This article will break down section 319.28 and other ways a person’s car can pass to their heirs or beneficiaries.
Something to note is that since cars are titled and registered with a state’s department of motor vehicles (or similar entity), they are considered property in that state. This means that Florida’s statute may only affect vehicles titled and registered in Florida, not those registered in other states. So, for example, if a snowbird spends about half of every year in Florida and the other half in New York, but their car was titled and registered in New York, the Florida statute may not apply to how that vehicle passes after the person dies, even if they claimed Florida residency.
Co-Owned Vehicles
Before we get into the statute, let’s address a common situation: co-owned vehicles. If a person dies owning a vehicle with someone else, the surviving owner may automatically own the entire vehicle. The important thing to look for on the title is whether it says “and” or “or” between the names of the owners. “And” means the owners each had only partial ownership of the vehicle (referred to as a tenancy in common), so the decedent’s heir will ultimately co-own the vehicle with the surviving owner after going through the steps in the following sections. “Or” means the vehicle was jointly owned, so the surviving owner will own the entire vehicle. The surviving owner does not need to file anything with a court or the Florida Department of Highway Safety and Motor Vehicles to make this happen–just bring a copy of the death certificate and title (if an electronic title, it may need to be printed) to the DMV.
Jointly owned vehicles are common when spouses own a vehicle together (in which case the title may read “TBE” after the owners’ names, which stands for tenants by the entirety) or a parent and child own a vehicle together (which title may read “or” between the names or “JTWROS” at the end, which stands for joint tenants with rights of survivorship).
If There Is No Will
If a person dies as the sole owner of a vehicle and does not have a Will, Florida law says any heir (someone who would otherwise inherit property from the deceased person) can apply for a certificate of title with the Florida DMV without going through probate. All the heir needs to do is fill out Florida form HSMV 82040, bring a copy of the death certificate and title, and complete an affidavit in which they state “the estate is not indebted and the surviving spouse, if any, and the heirs, have amicably agreed among themselves upon a division of the estate” [1]. If the decedent’s estate went through probate and a court issued an order administering property (usually an order of summary administration in this situation), it is a good idea to bring a copy of this order as well.
If There Is A Will
If someone dies testate (with a Will) in Florida, the law requires different things depending on whether probate proceedings occurred.
If the Will Was Probated
If the Will is probated, the heir needs to complete Florida form HSMV 82040, bring a copy of the death certificate, an affidavit that the estate has enough assets to pay all of its debts, and a certified copy of the Will (a copy received from the court after it has admitted the Will) [2].
If There Was No Probate
If the Will is not probated, the heir needs to complete Florida form HSMV 82040, bring a copy of the death certificate, an affidavit that the estate is not indebted, and a sworn copy of the Will [3].
If A Trust Owns The Vehicle
If the vehicle is titled in the name of a trust (for example, “Han Solo, as Trustee of the Solo Revocable Living Trust u/a/d January 1, 2024,” instead of just “Han Solo”), the terms of the trust will determine what happens with the vehicle when the settlor (the person who creates the trust) dies. This can be either through a specific bequest, such as leaving a particular vehicle to a specific person, or through a residuary clause that gives all remaining trust property to a person or group of people, such as all of the settlor’s children. Once the trustee transfers ownership to the intended recipient, the recipient will own the vehicle.
What About Creditors?
Creditors may or may not be an issue when it comes to vehicles.
If there is a balance on a loan specific to that vehicle, that creditor will always be entitled to repayment or they can repossess the vehicle. Usually, these types of creditors will allow the decedent’s heirs to make arrangements to either pay off the remaining balance or return the vehicle.
General creditors, like credit card companies, would only be able to go after the vehicle if it is paid off and the estate is otherwise unable to pay its debts. However, Florida law allows the decedent’s immediate family members to petition a court to have up to two vehicles declared exempt from these types of creditor claims if the vehicles were regularly used as the family’s personal vehicles [4].
A Florida wills, trusts, and estates attorney can help you navigate the many different situations that may arise when transferring a decedent’s vehicle.
[1] § 319.28(b), Fla. Stat. (2023)
[2] Id.
[3] Id.
[4] § 732.402(2)(b), Fla. Stat. (2023)