What Is a Florida Lady Bird Deed?

A Florida lady bird deed is a legal document transferring ownership automatically upon your death. A lady bird deed allows you to avoid probate, keep control over your property, and provide tax benefits to your beneficiaries.

How Does a Lady Bird Deed Work?

With lady bird deed, you designate someone to receive your property upon your death, but you can still use it and make decisions about it until you die. This means you retain a life estate. Usually, with a life estate, you can’t sell or mortgage the property, change who gets it after you die, or cancel the deed without the future owner’s (grantee’s) permission. But a lady bird deed is special because it lets you:

  1. Keep using the property during your lifetime.
  2. Sell the property and keep the money.
  3. Mortgage the property and use the money for yourself.
  4. Change or cancel the deed whenever you want.

You can do all these things without needing the permission or signature of the beneficiaries. A lady bird deed is also called an enhanced life estate deed because it gives you these powers in addition to what is normally allowed with a typical life estate.

In Florida, people often use a lady bird deed for their primary residence. It lets them live there until they die and then the property goes to someone else, like their child, without needing to go through probate.

What Is an Enhanced Life Estate Deed?

In Florida, a lady bird deed is officially known as an enhanced life estate deed because it allows you to retain lifetime use and control of real estate while designating a beneficiary to inherit the property directly upon your death. A lady bird deed and an enhanced life estate deed mean the same thing.

The enhanced life estate deed has all the features of a life estate deed. But with a lady bird deed, the life estate interest is “enhanced” by your rights, as the life estate holder, to revoke the deed or sell and mortgage the property. You have complete control over the property while you are alive. A Florida lady bird deed allows you to freely sell, transfer, or mortgage the property without the beneficiary’s consent.

Because the Florida enhanced life estate deed is revocable, you reserve the right to deed the property back to your own name or transfer the property to a third party. Your transfer of the property effectively cancels out the lady bird deed and divests the remainderman of their interest.

The key feature of a lady bird deed is the enhanced life estate. Only states that allow an enhanced life estate can have a lady bird deed.

All lady bird deeds create a life estate, but not all life estate deeds are lady bird deeds.

Get a lady bird deed done right.

One flat fee for an attorney consultation and preparation of your lady bird deed. We help people throughout Florida by phone and Zoom.

Alper Law attorneys

Advantages of a Lady Bird Deed

A Florida lady bird deed transfers your property upon death while allowing you use and control of the property while alive. Here are the benefits:

  • Avoiding probate.
  • Lower legal fees than a living trust plan.
  • You keep control of the property.
  • You can change your mind at any time about who gets the property.
  • Your property transfers automatically upon your death.

Disadvantages of a Lady Bird Deed

  • Only effects title to the property, not its contents.
  • It may be unclear what happens to your property if your beneficiary predeceases you.
  • A lady bird deed cannot disinherit a spouse or minor child.
  • Requires a new deed if you want to change the beneficiary.

Despite the disadvantages, people often use lady bird deeds in Florida as a simple, inexpensive way to transfer their home upon death without probate.

Lady bird deed in Florida

How to Create a Lady Bird Deed

A Florida lady bird must comply with Florida law to be valid. In Florida, a lady bird must include:

  1. The name of the grantor.
  2. A reservation of an enhanced life estate.
  3. The name (s) of a remainder beneficiary.
  4. A homestead provision to keep the homestead exemption.
  5. A full legal description of the property.

Lady bird deeds must have the name of the grantor, the name of the beneficiary, and the reservation of the enhanced life estate. Note that homestead property should also have a reservation of homestead status in the deed. Your signature must be notarized for the deed to be recorded.

You record your lady bird deed with your county’s records office. The county will charge a minimal documentary stamp tax. There is nothing else to has to do after recording the lady bird deed. After you die, your beneficiaries will file a copy of the death certificate. The property will instantly transfer to your beneficiaries under Florida law.

Lady bird deed in Florida

Lady Bird Deeds Explained

Who Is a Grantor of a Lady Bird Deed?

The creator of a lady bird deed is the current owner of the property. A lady bird deed allows the grantor to split their legal interest in the property into an enhanced life estate and a remainder interest.

What Is a Remainder Beneficiary?

The remainder beneficiary is the person, or group of people, who inherit ownership of the property upon the life tenant’s death. In a Florida lady bird deed, the legal interest of the remainder beneficiary vests when the life tenant dies. The remainder beneficiary has no ownership interest in the property during the life tenant’s lifetime.

Because real estate transfers automatically upon the life tenant’s death, the real estate is not part of the life tenant’s probate estate. Lady bird deeds therefore avoid probate.

What Is a Legal Description for a Lady Bird Deed?

In a lady bird deed, the legal description is the property’s formal identification in the public record. This description allows the county, future purchasers, and anyone else to clearly identify the property that is subject to the Florida lady bird deed.

The legal description is not the postal address; it is a description of the actual land as recorded by the county.

Does a Lady Bird Deed Maintain Your Homestead Exemption?

You do not lose your Florida homestead exemption by making a lady bird deed. Instead, you can retain homestead rights after executing a Florida lady bird deed for as long as you live on the property. Your home will remain exempt from creditors and qualify for a homestead tax exemption.

The lady bird deed should state that the property will remain the life tenant’s homestead to maintain the homestead exemption.

Get a lady bird deed done right.

One flat fee for an attorney consultation and preparation of your lady bird deed. We help people throughout Florida by phone and Zoom.

Alper Law attorneys

Example Use of a Lady Bird Deed

Sally Smith is retired and lives in her Florida home by herself. She used to own her property together with her husband, but her husband is now deceased.

Mrs. Smith has two adult children. She does not own anything of substantial value besides an old car and some money in her bank account. She wants to make sure that her house goes to her children when she dies in the easiest way possible. She doesn’t want her children to have to deal with probate or hire a lawyer just to get the home. But, she doesn’t want to give up her home while she’s living.

Mrs. Smith executes a lady bird deed for her house, naming her two children as beneficiaries. While Mrs. Smith is still living, Mrs. Smith will still enjoy full benefits of ownership and can freely live in, sell, mortgage, or transfer the home. Once she dies, however, the property will immediately transfer by operation of law to her two adult children. The children will not need to hire an attorney or probate the home.

Lady Bird Deed vs. Quitclaim Deed

quitclaim deed transfers the entire fee simple interest in your property to the person named as grantee. A quitclaim deed conveys all your interest in the property to another person immediately upon execution of the deed.

Unlike a quitclaim deed, a lady bird deed does not transfer your entire property interest. A lady bird deed retains part of your property rights and ownership as an enhanced life estate during your lifetime. In other words, a Florida lady bird deed functions as a quit claim deed that becomes fully effective after your death.

Sometimes a quitclaim deed may be more appropriate than a lady bird deed if the property owner wants to refinance debt and use the grantee’s credit, or if the grantee already lives in the home.

Using a lady bird deed

What Is a Transfer on Death Deed?

A transfer on death deed automatically conveys your property to someone else when you die. You cannot undo or modify a transfer on death deed unless the other person agrees to it.

Florida does not have transfer on death deeds because Florida has not adopted the Uniform Real Property Transfer on Death Act. This law would allow people to use a transfer on death deed for their property.

A transfer on death deed is often used as a will substitute as it allows people to efficiently transfer their homes to their designated heir outside of the cumbersome and expensive probate process.

A Florida lady bird deed accomplishes the same thing as a transfer on death deed. A Florida lady bird deed automatically transfers ownership of a property via deed upon the current owner’s death.

Lady bird deed for a townhouse

Using a Lady Bird Deed for Medicaid Planning

In Florida, a person’s homestead is protected from creditors with very few exceptions. Medicaid cannot look to the homestead for collection.

Medicaid can collect from non-homestead properties the amounts paid for care during the owner’s lifetime. Medicaid can assert a claim against assets in a person’s probate estate.

A lady bird deed transfers property after death outside probate, so the property is not part of the decedent’s probate estate. In this way, the non-homestead properties transfer automatically outside of the probate estate and are protected from Medicaid claims or any other creditors.

A lady bird deed can be a useful tool in Florida for people who qualify for Medicaid and who are concerned that the government will take non-homestead properties after their death to pay for their medical expenses during life.

Note that the property owner must still qualify for Medicaid during their lifetime, and the lady bird deed does not affect qualification rules.

Get a lady bird deed done right.

One flat fee for an attorney consultation and preparation of your lady bird deed. We help people throughout Florida by phone and Zoom.

Alper Law attorneys

What Happens to a Lady Bird Deed After a Civil Judgment?

There are different considerations for lady bird deeds if a money judgment has been issued against either you, the current owner, or your designated remainder beneficiaries.

Judgment Against the Life Estate Owner Can Affect the Property

In Florida, a lady bird deed does not protect your real property from creditors, other than your homestead, if there is a recorded civil judgment against you. A judgment becomes an automatic lien on all your real property in any county in which the judgment is recorded. Your homestead is an exception because it is exempt from levy and forced sale.

A judgment lien would automatically attach to any non-homestead property that you had conveyed in a lady bird deed. The judgment lienholder could foreclose the lien on your property, notwithstanding the prior lady bird deed. This property is considered your asset until your death when the lady bird deed transfers title to other beneficiaries.

The Effect of a Civil Judgment Against Your Designated Remainder Beneficiary

A civil judgment against a named remainder beneficiary of a lady bird deed does not affect your interest in the property during your lifetime. This is true because the remainderman’s interest in the property does not vest until your death.

Therefore, there is no legal interest to which the judgment can attach as long as you are alive. A judgment against a remainderman of a lady bird deed does not affect your ownership of your property.

Tax liens are different. An IRS lien against a remainder beneficiary attaches to the property as soon as the beneficiary is named on the lady bird deed.

Lady bird deed for a condo

Frequently Asked Questions

How does a lady bird deed work in Florida?

A Florida lady bird deed transfers title to Florida real estate to another person upon your death without probate. The deed must be signed by two witnesses and a notary. Lady bird deeds are recorded in the county public records.

How much does a lady bird deed cost?

It costs $450 or less for a lady bird deed in Florida. You should expect the attorney to discuss with you the advantages and disadvantages of the deed and make sure that the lady bird deed is consistent with your overall estate plan. The attorney should advise whether your other estate planning documents are appropriate, such as a will, health care directive, pre-need guardian designation, and living will.

Is a lady bird deed a good idea?

In Florida, a lady bird deed if you want to avoid probate for your home. Using a lady bird deed may not be a good idea if there are civil judgments already entered against designated beneficiaries.

Is a lady bird deed better than a living trust?

A revocable living trust is may not be required when the only property to be transferred via the living trust is a homestead. A living trust is the better estate planning option for people who have significant assets other than their house.

Is a lady bird deed legal in Florida?

Florida is one of the few states where a lady bird deed is legal. The states that offer lady bird deeds include: Florida, Michigan, Texas, Vermont, and West Virginia. Some other states may have what is called a transfer on death deed. Otherwise, property in those states must generally be put into a trust to avoid probate upon the owner’s death or else be held with survivorship rights.

Does a lady bird deed have to be recorded?

A lady bird deed must be recorded to be effective. Once the property owner executes the lady bird deed, the deed should be recorded in order to document the conveyance as part of the property’s legal chain of title. Recording the lady bird deed should not involve significant documentary stamp taxes, even if the property is mortgaged.

How do you change the beneficiaries on a lady bird deed?

A property owner can change the beneficiaries under a lady bird deed even after the original lady bird deed is recorded. The owner must execute and record a second lady bird deed that names the new person or people whom the owner chooses to inherit the property.

What has to be done with a lady bird deed after your death?

After the death of the life estate holder, the lady bird deed automatically transfers ownership of the property to the remainder beneficiaries. The remainder beneficiaries should record a copy of the death certificate in the county where the property is located. Then, the beneficiaries could contact the property appraiser so that the public records are updated with the names of the new owners.

Does a lady bird deed supercede a will in Florida?

Yes, a lady bird deed does supercede a will in Florida. A will only applies to property that is part of the deceased person’s estate. Property subject to a lady bird deed automatically transfers upon death of the owner, so the property is not part of the deceased person’s estate.

What are the tax consequences of a Lady Bird deed in Florida?

Transferring property by lady bird deed does not trigger a gift tax. The transfer is not a completed gift during the lifetime of the property owner.

In addition, the beneficiary of the lady bird deed should still enjoy a step-up basis in the property. A stepped-up basis means that if the property is eventually sold by the beneficiary, the beneficiary will pay income tax only on the appreciation in value from the date when the original property owner died.

What is the difference between a Lady Bird deed and a trust?

Both a lady bird deed and a trust avoid probate. However, unlike a lady bird deed, a trust can transfer any real or personal property to beneficiaries outside probate. A lady bird deed only deals with real property.

Can you get insurance with a lady bird deed?

Most major title insurance companies in Florida fully understand lady bird deeds and are not concerned about insuring the title of a property subject to a lady bird deed. A title company should not require the signature or consent of the people listed as remaindermen (designated beneficiaries) when the enhanced life estate owner sells the property because the beneficiaries have no vested property interest.

Some smaller or less experienced title insurance companies may not understand a lady bird deed, and these companies may require the remaindermen to sign a release. Even worse, the companies may require any judgment holders against the remaindermen to release any claim of lien against the properties. These requirements stem from a lack of understanding about how lady bird deeds work.

Property insurance is typically acquired in the grantor’s personal name prior to executing a lady bird deed.

Does a lady bird deed avoid probate?

Probate is a legal process by which a court assembles all of a deceased person’s assets in a “probate estate,” determines if any creditors have claims against the deceased person, and then distributes whatever is left in the probate estate after paying creditors according to the person’s will. Florida law requires that an attorney be involved in formal probate. Probate is both expensive and time-consuming for a family.

A lady bird deed avoids probate because the property title automatically transfers to the remainderman by “operation of law.” The subject property is not part of the decedent’s probate estate.

Can I do a lady bird deed myself?

You can file and record a lady bird deed yourself without an attorney. However, the county will not review the deed format or legal description. They will not tell you if it is done correctly.

How long does it take to get a lady bird deed?

About 1 week. You have to prepare the deed, sign it, and record it with the county.

Gideon Alper

About the Author

Gideon Alper is an attorney who specializes in asset protection planning. He graduated with honors from Emory University Law School and has over 15 years of legal experience.

Gideon has helped thousands of clients protect their assets from creditors. Before private practice, he represented the federal government while working for the IRS Office of Chief Counsel.

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