A “lady bird deed,” also known as an enhanced life estate deed, is an effective way to transfer real property to someone else outside of probate while retaining a life estate in the property. This type of deed got its nickname when President Lyndon B. Johnson used it to convey real estate to his wife, Lady Bird Johnson. The good news is that Florida is one of the few states that legally recognizes this type of deed.
Enhanced Life Estate Deed in Florida
A lady bird deed is often just called an enhanced life estate deed which is an effective and relatively inexpensive estate planning tool which can be used to transfer title onto whoever is designated in the recorded lady bird deed after the life estate holder passes away. A life estate is a right to live in the property until your death. When you pass away, the real property passes to your beneficiaries designated in the lady bird deed, called the remaindermen.
With a regular life estate, the life estate holder must get the remainderman’s consent to sell, transfer, or mortgage the property. But with an enhanced life estate, the life estate holder can do that on his own without permission or consent from the remainderman. Moreover, the grantor is still able to sell, mortgage the property, or outright cancel the deed during his or her lifetime.
Avoidance of Probate
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. One of the main advantages to a lady bird deed is that it passes automatically to the remainderman without the need for an expensive and time-consuming probate administration. This is similar to a transfer-on-death option in relation to a bank, retirement, or other investment account.
A lady bird deed has several advantages:
– Grantor is still able to sell, mortgage the property, or outright cancel the deed during his or her lifetime;
– Avoidance of probate;
– Retention of Florida homestead benefits;
– Preservation of Medicaid eligibility;
– Step-up in capital gains tax basis for your beneficiaries.
However, there are also some disadvantages:
– Lack of asset protection from creditors;
– Unfavorable consequences for predeceased beneficiaries;
– Ineffectiveness against Florida constitutional restrictions for a surviving spouse or minor child.
Source: Loshak Leach LLP, Florida