What Is A Lady Bird Deed And How Can It Help Avoid Probate?
If you are developing an estate planning strategy organized around probate avoidance, you may have questions about how to transfer real property. With a lady bird deed Florida residents may be able to pass real estate directly to their intended beneficiaries, without the property needing to go through the Florida probate process. Also sometimes called an enhanced life estate deed, a lady bird deed can offer a number of advantages to individuals preparing their Florida estate plans. To seek help in determining whether a lady bird makes sense for your situation, schedule a conversation with an experienced estate planning attorney at Loughlin Law, P.A. Call 561-559-6214 to book your time.
What Is a Lady Bird Deed?
A lady bird deed is a type of “enhanced” life estate deed. Like any other type of deed, a lady bird deed is used in the transfer of real property. (i.e., the title to land; typically lady bird deeds concern land that also includes manmade structures such as housing). Although relatively few states (including Florida) allow for lady bird deeds, they can be useful estate planning tools, particularly for individuals hoping to transfer a family home or other real estate outside the probate process.
What Is an Enhanced Life Estate?
The American Council on Aging explains that a life estate amounts to a co-ownership structure for a piece of real property. Unlike many other types of co-ownership, however, a “life estate” is not a type of ownership divided into synchronous partial shares of a whole, but rather is a type of ownership divided into sequential ownership of the whole. Instead of apportioning property rights into Part A and Part B, each held by a separate party but at the same time, a life estate divides ownership into Before and After, with the property rights divided by time rather than by scope.
The specific type of life estate set up by a lady bird deed is known as an “enhanced” life estate to distinguish it from a traditional life estate deed, also called a standard life estate deed. An estate planning attorney with Loughlin Law, P.A. may be able to answer more specific questions during a private consultation, but at a basic level there are two main differences between a traditional life estate deed and a lady bird deed Florida residents may find it helpful to keep in mind as they develop their estate plans:
- A lady bird deed does not grant the beneficiary any property rights during the lifetime of the property owner (also known as the life tenant, grantor, or life estate holder).
- A lady bird deed is not transferrable if the life tenant decides to sell the property, although the new owner can certainly create a new lady bird deed.
The second of these differences between an enhanced life estate deed and a traditional life estate deed follows directly from the first; with a standard life estate deed, the life tenant is prevented from taking a number of significant steps, such as sale of the property, once the life estate deed has been drafted and properly registered with the local court. Precisely because a lady bird deed does not give the beneficiary any interest in the property during the grantor’s lifetime, this type of deed can be revoked or superseded by a sale that transfers the ownership during the grantor’s lifetime (thereby invalidating the lady bird deed).
How Does a Lady Bird Deed Assist in Avoiding Probate?
Probate avoidance is not the only reason why some property owners in Florida choose to create lady bird deeds. Depending on their circumstances, some individuals who own property within the state may choose to set up an enhanced life estate to ensure their personal Medicaid eligibility as they contemplate their long-term care planning arrangements, or to safeguard the family home against Florida’s Medicaid Estate Recovery Act, as described in Fla. Rev. Stat. § 409.9101 (2024). However, a lady bird deed does also offer the potential advantage of avoiding probate because it transfers property directly to its beneficiary, outside the grantor’s Last Will and Testament.
Generally speaking, the beneficiary named in a lady bird deed can take ownership of the property by presenting a copy of the deceased owner’s death certificate (and their own identification) to the clerk of court for the jurisdiction where the lady bird deed has been recorded. At that point, the clerk will update court records to reflect that the former life estate has ended and the individual named in the lady bird deed now holds title to the property outright, effectively bypassing the probate process.
Speak With an Estate Planning Attorney
An enhanced life estate deed can be an efficient means of transferring real estate to your loved ones efficiently. With a lady bird deed Florida families prioritizing probate avoidance can often transfer real property, such as the family home, directly from one generation to the next without the delays or expenses sometimes associated with probate. To learn more, consider scheduling a consultation with Loughlin Law, P.A. Call our Boca Raton office at 561-559-6214 today to find a time that works for you.
