A Lady Bird deed (called an enhanced life estate deed in Florida) is a relatively new form of deed that, like a traditional life estate deed, allows property to pass automatically to one or more designated recipients at death, without the need for Florida probate. Florida is one of only a handful of states that recognize Lady Bird deeds.
How a Lady Bird Deed Works
Lady Bird deeds are used to avoid probate. Here’s how it works:
- You sign a deed transferring your real estate to a person or group of people (called the remaindermen or remainder beneficiaries) at your death, but retaining the right to sell, use, and otherwise deal with the property during your lifetime.
- If you decide to sell, mortgage, or otherwise deal with the property during your lifetime, you are able to do so without the consent of the remaindermen (this is the difference between a life estate deed and a Lady Bird deed).
- Upon your death, your remainder beneficiaries simply file your death certificate in the land records. This serves as proof of yours death and allows the property to be transferred to the remaindermen without the need for probate.
Advantages of Lady Bird Deeds over Traditional Life Estate Deeds
We’ve discussed the problems with traditional life estate deeds at length in our discussion of life estate deeds. Perhaps the biggest drawback is the inability of the person who deeds the property to change his or her mind. Once a traditional life estate deed is signed, the grantor cannot sell, mortgage, convey, gift, or otherwise terminate the remainder interest during his or her lifetime without the consent of the remainder beneficiaries.
Lady Bird deeds are intended to avoid this problem. Like a traditional life estate deed, a Lady Bird deed allows you to name someone to receive the property at your death while reserving the right to use the property during your lifetime. But unlike a traditional life estate deed, you are able to deal with the property during your lifetime, without the consent of the remainder beneficiaries.
Lady Bird deeds can allow you to:
- Keep complete control of the property during your lifetime without requiring consent of the remainder beneficiaries;
- Retain the right to use, profit from, or sell the property during your lifetime;
- Avoid triggering the Federal gift tax on the transfer during your lifetime; and
- Avoid probate of the property at your death.
Application of Florida Documentary Stamp Tax
The Florida documentary stamp tax applies to transfers of real estate by deed. The Florida Department of Revenue does not assess a full documentary stamp tax if the person who transfers the property is the same person that retains the life interest. Instead, the deed is only assessed a minimum documentary stamp tax at the time that the property is first conveyed. If the property is not sold by the date of the grantor’s death, it becomes subject to full documentary stamp tax at that point.
Common Pitfalls of Lady Bird Deeds
Lady Bird deeds are easy to mess up. Here are a few pitfalls to watch out for:
- It is important that the document be drafted by a knowledgeable attorney. If a mistake is made, the Lady Bird deed will not satisfy the Florida title insurance companies and will still require probate. The deed needs to be drafted so as not to allow the property to end up back in your estate through lapse (prior death of a named remainderman) or otherwise.
- Lady Bird deeds require special consideration if the property is subject to a mortgage. The cost of Florida’s mortgage taxes should be taken into account when considering whether the Lady Bird deed is the most cost-effective alternative.
- Lady Bird deeds must still meet the formalities required under Florida law for a deed to be valid. Otherwise, the deed will not achieve your goals of transferring the property without probate.
- Florida’s complicated homestead laws, including the restraint on alienation of a homestead, should be considered when dealing with Lady Bird deeds.
We prepare Florida Lady Bird deeds for all Florida counties on an affordable, flat fee basis. Feel free to contact our office for assistance.