Enhanced Life Estate Deeds, T.O.D. Deeds and Lady Bird Deeds in Florida
Over the last twenty years or so, enhanced life estates have become an increasingly popular estate-planning tool in Florida. Created by the memorably named “Lady Bird deed” (or the less catchy “TOD deed”), the surge in popularity has mostly arisen from two helpful features. First and foremost, Lady Bird deeds allow real estate to transfer outside of probate, even if the original owner retains possession for life. And, as a consequence, an enhanced life estate, or Lady Bird Deed in Florida provides significant advantages in Florida Medicaid planning.
It’s important to remember, though, that, while Lady Bird deeds can be exceptionally useful under the appropriate circumstances, they are a complex legal tool and also have some drawbacks. This article will take a look at some of the features of Lady Bird deeds, their pros and cons, and their history and current trends. But, before deciding if an enhanced life estate is right for your estate plan in Florida (or your home state), you should consult with an experienced estate-planning attorney in Florida or wherever you are located.
What is an Enhanced Life Estate in Florida
A “life estate” is an interest in real estate which the owner (or “life tenant”) retains until his or her death, at which point title automatically transfers to a successor designated in the deed (the “remainderman”). For the life tenant to transfer or mortgage the property during life, the remainderman must provide consent. Therefore, a life estate is a limited ownership interest. When the deed is recorded, the remainderman receives an immediately effective ownership interest in the property. Title to the real property in Florida doesn’t transfer to the remainderman until later, but the right to receive title in the future vests now.
A life estate becomes “enhanced” when it is not limited by the need for the remainderman’s consent. A Lady Bird deed does this by expressly reserving the life tenant’s right to transfer, mortgage, or otherwise use the property as he or she wishes, regardless of the remainderman’s future interest. Unlike with a traditional life estate, the owner of an enhanced life estate has no risk of liability to the remainderman for any transfer or waste of the property.
Enhanced life estates have been around for a long time and, in modern usage, are most commonly associated with Florida, along with Michigan and Texas to a lesser extent. The name “Lady Bird deed” derives from a hypothetical used by a Florida law professor to explain how enhanced life estates work. In the professor’s example, the parties were designated as “Lyndon” and “Ladybird” – a reference to President and First Lady Lyndon Baines and Ladybird Johnson.
How Enhanced Life Estates Work in Florida
In practice, an enhanced life estate works similarly to a bank account with a POD (“payable on death”) designation or a retirement account designated as TOD (“transfer on death”) in Florida. The life tenant retains complete, unfettered control over the property during life, including the right to change the remainderman (which the holder of a traditional life estate cannot do absent consent). Then, upon the life tenant’s death, title automatically vests in the remainderman, without any need for probate in Florida.
Notably, a Lady Bird deed becomes effective immediately upon its recording in the county land records. But the transfer to the remainderman does not become effective until the occurrence of a future event (i.e., the life tenant’s death). By way of comparison, a traditional life estate is a current transfer of a future interest – rather than a future transfer, as with an enhanced life estate. It’s a subtle distinction, but it has considerable implications.
Why Florida Lady Bird Deeds Are Useful
During life, a Lady Bird deed keeps the life tenant in control of the property. So, if things change and the life tenant needs to sell or mortgage the real estate, he or she doesn’t need the remainderman’s blessing. Or if for some reason a life tenant decides that someone else should ultimately inherit the property, the remainderman can be changed.
Upon a life tenant’s death, an enhanced life estate avoids the need for probate. Avoiding probate in Florida and elsewhere is advantageous in and of itself because it circumvents the considerable time and transaction costs associated with probate court. It can sometimes take months, or even years, before a successor formally takes title through probate, but a Lady Bird deed allows title to pass automatically.
For Medicaid beneficiaries, keeping a property out of probate becomes even more valuable. In general, Medicaid is empowered to act as a creditor of a recipient’s estate, allowing the Florida Medicaid Estate Recovery Program to seek reimbursement by filing a claim against estate assets. A Florida recipient’s primary residence is exempt from Medicaid reimbursement, but non-homestead real estate in Florida (such as, for instance, a rental property) can be subject to Medicaid liens. However, Medicaid only seeks reimbursement from assets within the estate. A property held as an enhanced life estate, though, is not within the estate because it already automatically transferred to the remainderman upon death. Thus, using a Lady Bird deed can allow heirs to inherit a property that might otherwise have been sold to pay a Medicaid reimbursement claim.
Within the context of Florida Medicaid-planning and real estate, an enhanced life estate is considered in the Medicaid asset test like other real estate. If a property qualifies as a homestead in Florida, it won’t be included as a countable asset. For purposes of the five-year lookback period (Florida Medicaid counts certain assets transferred within five years of application toward the asset test), a property subject to a Lady Bird deed is not counted as a transfer – and is therefore not a countable asset. Thus, because the life tenant retains control over the property and the remainderman’s interest is essentially voidable, a future interest granted via a Lady Bird deed within five years of a Medicaid application won’t hinder the grantor’s eligibility. That is generally not the case with a traditional life estate.
Lady Bird deeds also offer some valuable tax and asset-protection advantages in Florida. Eligible Florida homesteads are protected from both creditor attachment and real estate tax increases resulting from a higher assessed value. A property subject to an enhanced life estate retains both homestead protections. A property transferred to a trust or to a third party might not.
Moreover, because a remainderman’s interest is revocable, transfer of the future interest via a Lady Bird deed does not count as a “gift” for federal gift tax purposes. For the same reason, a remainderman’s creditors cannot attach the property as long as the life tenant retains control. On the other hand, a vested remainder interest derived from a traditional life estate potentially qualifies as a “gift” and is potentially attachable by creditors.
Drawbacks to Enhanced Life Estates in Florida
No estate-planning strategy is without some disadvantage, and enhanced life estates are no exception. Florida’s constitutional homestead protections include rights reserved to spouses and minor children. Real estate transfers that infringe on any of these rights – including transfers made via Lady Bird deeds – are void. So, property owners with spouses or minor children need to take special care when executing a Lady Bird deed – or might not be able to use an enhanced life estate at all.
Another potential risk is that, if a remainderman passes away prior to the life tenant, the remainder interest may have to pass through probate. Fortunately, though, there are clever strategies for avoiding this problem in most cases.
A property subject to an enhanced life estate may also be more difficult to sell than a property held in fee simple or in a Florida revocable living trust. Although the life tenant has the legal right to sell the property, a prospective purchaser (or, perhaps more realistically, the title insurance company) may require a disclaimer or quit claim deed from the remainderman to ensure clear title is transferred. For this and other reasons, it is vital that a Lady Bird deed unmistakably, unambiguously reserve all of the relevant rights. Scrivener’s error could invalidate the deed, defeating the entire purpose. So, if you’re going to use a Lady Bird deed, it’s very important to have it prepared by a qualified attorney with Florida property law experience.
Enhanced Life Estate Trends in Florida and Nationally
Enhanced life estates originally arose under the common law and were only recognized in a few states – notably including Florida. Beginning in the 1990’s, more states started recognizing TOD deeds by statute as their usefulness in estate and Medicaid planning became increasingly apparent. States with statutory frameworks have tended to favor the term “TOD deed,” rather than “Lady Bird deed,” which more commonly refers to deeds relying on the common law, such as in Florida.
In 2009, the Uniform Law Commission proposed the Uniform Real Property Transfer on Death Act, a model statute aimed at achieving jurisdictional conformity within states recognizing enhanced life estates. Notwithstanding the proposed uniform law, the various state statutes addressing TOD deeds are not always consistent, and a sizeable minority of jurisdictions still do not recognize enhanced life estates. However, most states that haven’t already are likely to recognize TOD deeds in the future, as citizens of states without enhanced life estates are at a disadvantage in Medicaid planning.
The law relating to Lady Bird deeds is not as developed as other areas of property law, and improperly used or carelessly prepared deeds are likely to lead to unforeseen consequences. Medicaid and estate planning in Florida are complicated areas of the law, so it is a good idea to consult with an experienced attorney before attempting an enhanced life estate or other estate-planning strategy.
Steve Gibbs, Esq.
Can a revocable trust be named as the grantee in a ladybird deed? My wife and I are Wisconsin residents and have revocable trust. Our Wisconsin attorney told us we should quit claim our Florida vacation home into the trust. I am wondering if we can simply use a ladybird deed and name the trust as the grantee? That way we can keep the home in our personal names and not have it go into the trust until we have both died. There is no mortgage on the Florida home. Thank you. Dave Barnes
Hello Dave, thanks for commenting. The short answer is I think the quitclaim of the FL real property into your WI trust is a better option than using the ladybird deed. A rev trust in general is basically an alter ego of you and your wife, so the ladybird deed would offer no real benefit in this circumstance. Moreover, using a revocable trust as the beneficiary of a ladybird deed isn’t normally done in my experience and may present a few complications upon death. Those are my thoughts, especially given the fact that there is no mortgage on the FL property. Let us know if we can assist with the quitclaim by e-mailing Gene at admin@gibbslawfl.com.
Best,
Steve Gibbs, Esq.
If the remainder man named in the Enhanced Life Estate dies prior to the Life Tenant, instead of going through the remainder man’s probate (to remove the name), couldn’t the Life Tenant file an Amended Enhanced Life Estate, or change the name of the remainder man name to someone else, and then file and record the revised doc with clerk of court?
Hello Denise, thanks for commenting. I think filing an amended enhanced life estate may work, but also, depending upon what you mean, may be unnecessarily complicated. An easier way may be to simply record a new deed. If you need help with this, let us know by e-mailing Gene at admin@gibbslawfl.com or calling 239-415-7495.
Best,
Steve Gibbs, Esq.
I have a enhanced life estate lady bird deed , drawn up and legally done and recorded ,, while my mother is in a nursing home in florida ,, I did this so medicade would not take my land after mother dies in there medicade recovery system ,, am I protected now because its complete and recorded
Hello, thanks for reading and commenting. Without getting in to what Medicaid will do, because this is impossible to predict with total certainty, often the best possible choice is a properly prepared enhanced life estate deed.
Best to you.
Steve Gibbs, Esq.
I’m thinking about doing a Lady Bird Deed and naming my children as the remaindermen, Would this affect their ability to get assistance as first time home owners if they have an ownership interest in the property?
Thanks.
Lisa
If a lady bird deed is already filed in florida and the and granter of the deed wants to remove a person off the lady bird deed the easiest way is to just file a new one is this correct or will it complicate things more with serval deeds filed and does the first deed file is that canceled and has no weight any more thanks
Hi Lisa, good question. In my experience the kids interest would not be vested yet and thus would not affect their ability to get basic FHA assistance. Let us know if we can help you with this by connecting with Gene at admin@gibbslawfl.com.
Best,
Steve Gibbs, Esq.
In general the easiest way if it is a true lady bird deed would be to file a new one. Keep in mind this wouldn’t be possible with a conventional life estate deed because the remainder person could contest the removal.
Best, Steve Gibbs, Esq.
Thinking of doing the enhanced ladybird, if it has too be done through a lawyer v other service with a small estate. What are usual fees? Does homestead get messed up?
Hello Lawrence, thanks for reading and commenting. Because this is a complicated deed, I do highly suggest you have a lawyer do it. Usual fees vary based upon complexity. You’ll need to schedule an initial discussion with Gene at admin@gibbslawfl.com. Done properly, this shouldn’t impact the homestead.
Best,
Steve Gibbs, Esq.
Hello,
This deed was mentioned to me by a friend, thanks so much for the article. I am also thinking of doing a ladybird deed, may I ask what would be the impact on the property taxes be once the homestead is passed to my daughter (remaindermen). Would they drastically increase (as in a sale) or remain relatively the same?
Thx, Lynn
Hello Lynn, you’re welcome, it’s nice to hear great feedback. My experience is that the property taxes can be reassessed upon passing so they certainly could go up. You might do some inquiries with your county recorder (where the real property is located) to ask what the standard reassessment practice is.
Best to you.
Steve Gibbs, Esq.
Mr. Gibbs,
It sounds like it is best not to have a Lady Bird deed if both husband and wife are living .
Should you have 2 deeds and wait till death do us part, and then file one?
Good morning Gloria and thanks for commenting. Actually whether you would want a lady bird deed as a married couple would depend on your goals. It actually is very important if you and your spouse have kids from prior marriages. Best to do a consult if you’re considering this option. You can reach out to Gene at admin@gibbslawfl.com to schedule.
Best, Steve Gibbs, Esq.
Two questions:
1. My main residence is titled to my wife and me. Can we execute a Lady Bird deed such that the remainder(s) could only make their claim upon the proof of both owners dying.
2. I have a vacation home. Can I use a lady bird deed on both my primary residence and the vacation home?
Is a Lady Bird deed still valid if it is properly notarized and witnessed but not filed with the court until after the grantor dies?
Hello Bill, the short answered, for educational purposes only, is offered as follows:
1. You wouldn’t need to do this, generally speaking, because each spouse would succeed the other and the real property would pass to the designated beneficiaries upon the last spouse’s passing. However, there are some other things to suggest, such as the surviving spouse’s ability to change the deed… Homestead rights also need to be considered. Thus, you need expert help with these…
2. Yes, any real property in general can be transferred with a lady bird deed.
3. The “not filing the deed” thing is an old tactic…I’m not sure why one would do this intentionally as it is risky and there are better alternatives. Again, I highly advise you to seek expert help to avoid taking unnecessary risks.
Best,
Steve Gibbs, Esq.
When considering a Lady Bird Deed, is it possible to designate three people as the remainderman?
Hello Pat, thanks for commenting. Yes it is possible done the right way. However, the question becomes whether a simple trust is a better solution at that point due to the flexibility offered vs the inflexibility of a deed. Let us know if we can help by connecting with Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
My condo association has a rule that new buyers can not rent out the unit for 2 years .
When my wife and I pass my will states that my daughter becomes the owner.
Will she have to wait 2 years before she can rent it or will a lady bird deed by pass that rule and give her the right to rent and not wait 2 years
Can I name a minor on a lady bird deed.?
Hello Gerald, thanks for reading and commenting. Unfortunately, without looking at your governing documents I have no idea. It’s possible if they refer to “buyers” and your daughter is not defined as one…then maybe not. They lady bird deed is most likely irrelevant in the discussion…it is whether she is considered under community rules to be a “buyer”. Again, I’m only speculating and offer some thoughts for educational purposes only. Let us know if you’d like an individual consultation by connecting with Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hello Lorna, thanks for commenting. My opinion is that if there is a minor, a revocable trust will be a more appropriate vehicle to use because you can appoint an independent trustee to manage the real property for the minor’s benefit. This approach may also benefit you in other ways if there are other assets that you’d like to be used for either your and the minor’s support. Let us know if you’d like a personal discussion to explore options in greater detail by e-mailing Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
If one is named as an REM on a recorded lady bird deed in Florida, is that person considered an owner to the COA or HOA?
Hello Bruce, thanks for commenting. It’s tough to comment without seeing the deed but I believe that refers to a remainder person (beneficiary). If it’s really a lady bird deed than someone with a remainder interest wouldn’t be considered an owner. As always, this feedback can only be offered for educational purposes and you shouldn’t act without obtaining the advice of an licensed estate planning attorney in Florida.
Best,
Steve Gibbs, Esq.
Hi
If I, The life tenant , die will my remainderman be responsible for my personal bills such as credit cards etc? Can the life estate be sued by creditors when I pass?
Thank you
Hello Paula, thanks for commenting. If you have unpaid creditors during your lifetime, they could obtain a judgment and put a lien on that real property in my opinion. If that happened, the remainderman could be responsible to pay the liens. Otherwise, I think it’d be tough for the creditor to try to hold the remaindermen responsible if those steps hadn’t been taken during your lifetime. Tough call.
Best, Steve Gibbs, Esq.
If a homestead is left to two minor children in a lady bird deed, the life tenant (mom) passes, what happens to the property at that point?
Note-There is a will with a Minor’s Trust built in, which names a guardian and trustee.
After reading the comments above, I am wondering if it would be a good idea to do a new deed and create a living trust solely for the homestead property….. what do you think?
My father setup a ladybird deed with my brother and I as remaindermen. Now that he had died, I gave a copy of the death certificate to the county to record. They said I need to give them a ‘deed form’ too so they can register that. What type of deed would that be? Would that be something a title company can do for me? Do my brother and I technically own the house now?
Thank you, Kim
Hello Marla, thanks for reading and commenting. The short answer is yes, when there are minor children a living trust a superior way to plan due to the huge amount of flexibility that can be built into the trust agreement. Also, when children are young, nothing needs to be set in stone and it is easier to change a living trust because you don’t need to record a new deed…just amend the trust. Lots of other reasons to consider in a private conversation. Feel free to reach out to Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq
Hello Kim, thanks for your comment. Unfortunately things can vary greatly between counties and it is really tough to commenting without seeing the response or reviewing the deed. You might need a lawyer to get this done as title companies don’t advocate…hard to say. Feel free to reach out to Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Are there any gift tax consequences when using a Lady Bird Deed in Florida?
My aunt, with no spouse or children, just passed away and the next of kin just realized, after looking at the property appraisers website, that a neighbor acquired and completed a form from a website changing my aunts deed to a res. Life estate deed naming the neighbor and her husband as grantees. The form was notarized with no identification, but rather, as “Personally known” and then files with the county. Is this contestable? My aunt had expressed other wishes for her home to several family members over recent years.
Would it be possible to give my live-in boyfriend a life estate with a lady bird deed and then after he dies have the remainder transfer to my son?
Hello Karen, thanks for reading and commenting. That is a question that I’ll defer to your tax adviser on. For educational purposes only though, you could contend that there is no gift with a lady bird deed because the real property is still in the ownership and control of the grantor who retains the right to sell the real property. Thus, the interest conveyed is not yet “vested” to the beneficiary/s and this equates to “no gift”.
Best, Steve Gibbs, Esq.
Hello Layne, real estate litigation isn’t really my area. I general, it sounds fishy and as most things, could be contested on the grounds of something like fraud or elder abuse…I suggest you talk with an attorney who focuses on these areas in a consultative setting to get a better idea of your chances of prevailing.
Best, Steve Gibbs, Esq.
Hello Mary, thanks for commenting. There are too many factors to consider to respond and I’m concerned that if I offer feedback, you’ll proceed with partial information and end up an a bad situation. So I’ll go this route…if you want your “boyfriend” to be able to live in you real property for life and then the remainder to go to you son, you might consider doing this with a trust and an independent trustee. This way, you could maintain control of the real property in your estate and also put some parameters on the use such as him paying the expenses. On the other hand, if you do a deed to your boyfriend, you’ve just lost control of your property. I strongly suggest you connect with an expert before doing anything and you are always welcome to reach out to Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
A single woman has executed an ehanced life Estate deed (the property is her personal residence) with her daughters as remainder persons. The property has been sold and all three have signed the sales contract. The closing statement will reflect the mother’s name, The deed will list the mother conveying her fee simple interest followed by the names of each daughter. Is this correct?
Hal
Hello Harold and thanks for commenting. Although I want to help, I’m going to decline a response because this is most definitely a question that is oriented toward legal representation and not a blog comment. I highly recommend you seek professional advice on this as there are lots of ways to do it wrong.
Best, Steve Gibbs, Esq.
Thank you for your article. My mom is in a nursing home and a lady bird deed was made (3 children as remainders) as part of her medicaid plan. My father is deceased and mom keeps wanting to sell the house. If we do that what happens to the proceeds? To medicaid? My sister has a small personal services contract, can that be utilized?
Jeff, thanks for commenting. Yours is a situation not easily addressed in a blog answer. Generally, the proceeds from the sale of a lady bird deed will go to your mom as she reserved the right to sell. Personal services contracts can be utilized but are heavily scrutinized. An alternative may be to turn the home into a rental…as this is a Medicaid exception. Let us know if we can help further by e-mailing Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
My mother wrote in her will for her property to be transferred to me. The Will is notarized. We also had a Quit Claim Deed written up as well as a Lady Bird Deed. Both deeds have been notarized but not recorded. I thought they would have to be recorded after my moms passing. Now that my mother has passed, Will the property go into probate even thought I have a Lady Bird Deed?
Hello Yvonne, thanks for reading and commenting. Probate would be required unless the deeds are recorded which still may be possible. It sounds like you need local legal advice on that issue.
Best, Steve Gibbs, Esq.
Steve,
Can you think of any pitfalls for a non-resident alien using an enhanced life estate deed to transfer
FL real estate to another non-resident alien? I am a Canadian citizen who wants to leave my FL vacation condo to my Canadian niece.
Hello and thanks for commenting. Under U.S. laws I can’t think of anything to prevent the transfer; however, as in most cases, a thorough review should be considered with a professional prior to doing anything to weed out any issues.
Best, Steve Gibbs, Esq.
My mom has a revocable trust and upon her death her house goes to me and my brother. We are thinking of having her live in an assisted living that meets her needs in NJ where I live. We don’t want to give up the house in Florida. In case she has to go on Medicaid will her house be an asset that they will make us sell to pay when she runs out of money?? We also have an Enhanced Life Estate Deed that we have not filed yet. If we file it and my mom is in a place in NJ and runs out of money and needs to go on Medicaid, will they make us use the house as an asset even though five years has not passed?? What should we do?? Thank you
Hi Joanne, thanks for commenting. Unfortunately, more information is needed concerning the assets as this kind of situation can be very touchy with wrong moves being very costly. You can schedule a consultation with Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Would it be better to file a Lady Bird Deed or quit claim deed in Florida. We have a will, but the attorney wanted too much money to add a trust. We want to leave both of our children our home in case of our death. I would have liked to do a Transfer on Death deed but was told that is not accepted in Florida. We want to avoid probate for our children.
Hello Cheryl and thanks for commenting. Short answer: quit claim not good. I see folks mess up their estate plans and financial lives by taking this step. The lady bird deed is most likely ideal for probate avoidance and also protects you and your significant other. Let us know if we can help by connecting with Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
My main residence in is Pa and I have a vacation home in Florida that I own free and clear. I have a will in Pa leaving my assets to my two sons. I do not have a will in Florida. Will that have any impact changing to a Ladybird deed? Also, the deed in Florida is in my name only. I do not have homestead and I do realize the assessment might change upon my death. However, when I change to a ladybird deed could that have a impact on my property taxes currently?
Hello Jennifer, thanks for reading and commenting. Based upon what you’ve shared, for a non-homestead property the lady bird deed could offer the advantage of avoiding probate in FL. If you’re a PA resident, you wouldn’t need a FL will but should make sure your PA documents are kept up to date. Should be no impact on property taxes to do a lady bird deed. Let us know if we can help, can prepare and send anywhere in FL. Feel free to reach out to Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
If I have a first morgage loan on my propery in Florida, Will having a Lady Bird Deed affect my loan? And does the remainderman have to pay back the remainder of balance of the mortgage loan after my death or just take over payment for the balance?
Thanks
Hello Joe and thanks for commenting. Generally the mortgage follow the real property, so yes the remainderman would need to pay off or refinance the mortgage. Unless, he/she signed off on the mortgage they typically wouldn’t just take over payments.
Best,
Steve Gibbs, Esq.
How does one acquire a ladybird deed.
Is this something I can do myself or does an
Attorney such as yourself have to file the paperwork?
If so any idea what it costs.
Harold
Hello Harold, thanks for reading and commenting. We provide ladybird deeds on a flat fee basis which varies a little based upon complexity. I definitely do NOT recommend that you do this yourself because it is technical legal document and doing it wrong can create title problems AND/OR result in a need for probate. For a firm quote, connect with Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hi Steve,
Great article. Very informative. Thank you!
I am a widower with 2 adult sons. I recently moved from NY to Maine. I own (no mortgages) a home in Maine and a condo in Florida. I am getting somewhat conflicting suggestions on whether to put the properties in a revocable trust, or use a Lady Bird Deed in Florida and a recently enacted Transfer on Death deed for the Maine property. Generally speaking, do you prefer one over the other?
Thank You
Hello Robert, thanks and it’s always nice to get great feedback! The answer to your question would vary based upon a number of questions that should be addressed in a confidential conversation. For example, if you’re married and a Florida resident, the advice would be different than if you’re a Maine resident or a widower. I don’t prefer any particular solution as a one size fits all because these are not black and white solutions. We are rolling out a platform of virtual services soon and could help you with personal FL legal advice that is all web based. Bookmark the website and you’ll see some changes in the future. If you’re interested in talking sooner, connect with Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
I live on a fixed income (SS) and do not have that many assets. I have one daughter, no spouse. I finally have my home paid off – its not worth a lot (approx. $150,00) but I dont want my daughter to have to go thru probate. I was thinking about the LadyBird deed to do this. ( I live in Florida) Since all I need to do is leave her my home, do you think this is the best way to go? I would like to try to fill out the form myself, due to the cost of an attorney, since mine is pretty simple. What are your thoughts? Or is there another inexpensive way to leave her my home to avoid probate? Thanks in advance.
Hello Emily, thanks for reading and commenting. The best way to avoid FL with that property is exactly what you’re exploring and this the life enhanced deed option. We are putting together a virtual way to get one prepared starting from the web. Watch the website for details. I strenuously suggest that you avoid doing this yourself as it absolutely is NOT like “filling out a form” and doing it wrong will lead to more expensive title problems AND potential probate to boot. The fees range from $750 to have one prepared in office to $499 for the virtual option so not bad given the property being worth $150,000 and probate averaging a minimum of $2500 – $5000 for simple estates.
Let us know if we can help.
Steve Gibbs, Esq.
Hi! thanks for your website. Very helpful. We have couple rental homes and one residence. No mortgage. It is possible to make and record one Ladybird deed in one form or every property should be done individually filed by deed? Thanks.
Hello Maria, thanks for commenting. Every separate parcel of real property would be done by separate deed and this needs to be professionally done in order to avoid expensive title problems.
Best, Steve Gibbs
Hi, my mom’s boyfriend Ladybird deeded his home and property for taking care of him. He made me his POA. He originally had a life estate on it gifting it to the youngest of his 4 daughters. Given the fact none of them have spoken to their father in 3 years, he made his decision. The youngest daughter knows nothing of the changes he made. When he passes, I am sure they will find their voice. What legal right do I have to protect his gift to me?
I have a quit claim deed that was filed by my lawyer. The grantor has passed away. Am I able to change the locks and take possession of the property?
Hello Sandie, the POA will be extinguished upon your boyfriend’s passing. On the other hand, the lady bird deed would transfer the property to you if properly done. Anything can be challenged of course; however, it is difficult to overturn valid gifts and transfers that were not made under duress while the person was of sound mind.
I hope this helps.
Best, Steve Gibbs, Esq
Hi Joyce, thanks for commenting. I recommend that you ask your lawyer about that as he or she would be familiar with the deed having prepared and filed it.
Best, Steve Gibbs, Esq.
Thank you for this very helpful information. After the execution of a lady bird deed, should a cooperative share be transferred from the owner to the owner and the remainderman? Or would the share only be transferred upon the death of the owner? Thank you.
Hello Tracye and thanks for reading. Typically with this kind of deed, the interest doesn’t vest and shouldn’t until the detail of the life tenant because that person retains the right to sell. If you’re looking to accomplish something else, a trust may be more appropriate. We run into situations where someone should’ve done a trust in the first place but opted to “go cheap” and this can create further complications down the road.
Best,
Steve Gibbs, Esq.
My wife and I have always put any property we own in our names with Ladybird deed for our children. The association says
“No changes in title can take place at any time without prior consent and approval of the condominium association. This includes to any trust LLC or any additional named person”
Is this legal and how would this work with a Ladybird?
Thanks
Hello Mitch, thanks for commenting. If you’re asking whether something is legal you may be asking the wrong question. Are you willing to hire a lawyer to find out? Generally, an association my make rules to suit the members and even include restraints on title. That one may be broad; however, it doesn’t appear to be unenforceable at least in my opinion. The more practical solution is to have the lady bird prepared (professionally) and then ask for their approval. Just show them it is for estate planning and you’re not trying to rent it or otherwise transfer it.
Let us know if we can help by connecting with Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hello – I wouldn’t want my home to go to the remainderman’s estate in the event she predeceases me (the life estate holder). Could probate be avoided by naming on the Lady Bird deed both the remainderman and myself as joint remaindermen with right of survivorship? Alternatively, could I just file a new deed after the death of the remainderman? Thanks for your help
Hello Joel, thanks for your comment. Actually if you’re concerned about that result you wouldn’t list yourself as a joint remainderman in my opinion. Sometimes using a trust is more effective because it is more flexible down the road. For a more detailed discussion, connect with Gene Ross at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
If my Elder Florida Lawyer, declares my 91 year old Mother, incompetent. Will
I be able to complete a Lady Bird Deed with my DPOA from her? I have a strong 2006 DPOA from her. I believe in 2011 or 2013 there were some new Medicaid Laws regarding Medicaid? My Mother has dementia. She meets the criteria to apply for Medicaid. She has lived in her home 58 years and claims Homestead and Widows exemption each year. I believe there may be a stronger DPOA that goes with the Lady Bird Deed than the one I have, that can’t get, due to her being incompetent? My Mother added my name to her home 4 years and 6 months ago. Medicaid requires 5 years. I am Representative in her Will (1981). I would like to try to keep her home for my Brother. He really doesn’t care to deal with any of this. My mother is getting a lot worse with her dementia. I don’t think I will be able to wait for the over 5 years Medicaid requires? Should I proceed with the Lady Bird Deed, with Mother incompetent and using my 2006 DPOA and if so will Medicaid except claim or possibly be denied. I am concerned could be a problem when my mother passes if my deeds were not valid due to my 2006 DPOA? Do I go to Nursing Home and ask up front if they will except my POA with LBD, before I have Lawyer complete LBD. Getting expensive with Lawyer questions. Will Medicaid probably want me to sale her home first? Thank you very much
Gail
Hello Gail, thanks for commenting. This is a lot to respond to in a blog comment and honestly would require some more information in the context of a private legal consultation. The short partial answer, offered for educational purposes only, is that a “strong” DPOA should help you plan, transferring real property, etc. However, you also need to consider your mother’s wishes as expressed in her last will and or trust if these have been prepared in order to avoid disputes with other beneficiaries. Also, it may appear expensive; however, you may need to bear some costs to get your mother qualified for Medicaid, as this can be a rather involved process for your lawyer and yet can save 10’s of thousands of dollars in medical care costs in the long run. Let us know if we can help by e-mailing Gene at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
If the homeowner is sued for any reason, such as a injury on the property, can the person on the “receiving” side of the lady bird deed be brought into the lawsuit/sued as well?
Thank you for any assistance and clarification.
Hello Kimberly, thanks for your question and this simple answer is no, the remainder person would not be made a party to the lawsuit simply by virtue of being on the deed other than he or she may be named in the lawsuit to the extent of his/her remainder interest in that real property.
I hope this is helpful.
Best, Steve Gibbs, Esq.
Buying a Condo and was wanting to do a Lady Bird Deed…. at the Title Insurance co; they told me I couldn’t have my son on it because he lived in Alabama… True or False?
Cathy
Hello Cathy, thanks for reading and your question. In my experience, the beneficiary on a lady bird deed is not restricted by a beneficiary’s state of residence.
Best, Steve Gibbs, Esq.
My wife and I just sold last week our home in florida that had a enhanced life estate deed that was recorded in florida on 11/14/16 with our two sons as 50/50 remaindermen . we are purchasing next week a new home in florida. we want to close with a” like” enhanced deed. The title company seems to be balking wanting to do a traditional life estate deed and then having an attorney drawup the enhanced,. Is that proper? Also, by selling and buying a new home, do we lose the almost 5 years we acrued against the Medicaid “lookback”. My wife and I have spoken to a couple of attorneys and could not get a straight answer. Thank you in advance for your response.
Hi Gary, thanks for reading and commenting. Your questions would lend themselves to a formal consultation with our office. The life enhanced deed would typically need to be prepared by an experienced FL attorney. The Medicaid lookback shouldn’t be an issue but am not sure without some discussion. To schedule, connect with Gene at info@gibbslawfl.com.
Best, Steve
I know in florida rental property is exempt from Medicaid liens. Is something like a ladybird deed necessary to keep Medicaid from trying to recover expenses after death? My parents have rental property and they want to make sure its protected.
Hello Richard, yes a ladybird deed can be helpful, both to avoid probate, and, currently, to help counter a potential Medicaid lien. Connect with Gene at info@gibbslawfl.com if you would like more information on having this prepared.
Best, Steve Gibbs, Esq.
I’ve just read thru everything – GREAT INFO!!! I think I read (but have not been able to find where) that only spouses and children can be named in Lady Bird Deed as remainderman . Is that correct, and if so what options do I have? My husband is deceased, we had no children, I have 2 nieces and a Nephew, My will is set up so they inherit everything when I die, Is there anyway I can do a Lady Bird and name my oldest niece, who is my Executrix, as remainderman? I don’t want them to lose a lot of money paying gift taxes! (PS i live in Fl nieces and nephew live in Atlanta and TX.
Thank you!!
My father has just passed away here in Florida and I am just finding out that he filed a “Enhanced Life Estate Deed” a few years ago. He remarried after my mom’s passing and lists his new wife as a “grantor” and my sister as “grantee”. With my dad now gone does his surviving wife have the right to sell our family home and keep the money?
Hello and thanks for reading. Due to the nature of a lady bird deed reserving all rights to the grantor and the fact that it is an estate planning strategy, to name a non-immediate family member as beneficiary would be irregular. A better option though is to use a simple revocable trust in Florida and title your real property in it. This allows more discretion for your successor trustee and still avoids probate in FL.
Let us know if we can help by connecting with Gene at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hello Bob, the way these deeds work is reserving all rights to the grantor so the short answer without having actual knowledge of the situation would be yes she does.
I suggest you have someone take a look at the deed though to be sure and we can do this via a consultation. Connect with Gene at info@gibbslawfl.com to schedule.
Best, Steve Gibbs, Esq.
I refinanced my home a few years ago when it wast upside down in the market, and I received a good deal not having to pay interests in a portion of the house. But if I sell the house, I have to pay the whole amount to the bank, of course. It’s good to live it, but not so good to sell it. I want to leave the house to one of my grandsons. Is he going to be able to keep paying the same mortgage or he will have to renegotiate the house again? Can I name my grandson’s father as the remainderman, even though I have 2 kids and he is not my son and not married to my daughter?
Hello Marianne, thanks for your question. It is bit hard to comment in blog post due to complexity; however, in general your grandson would have to refinance and thus negotiate with the lender. You might consider a trust as opposed to the lady bird deed if your grandson is a minor as it will allow the father to manage and will provide additional flexibility for negotiating with the lender.
Best, Steve Gibbs, Esq.
This article is extremely helpful! I have a question. I have a property that I purchased prior to my current marriage, and the deed is in my name only. I plan on enacting a lady bird deed so my daughter inherits my property when I pass away. How is a lady bird deef affected if one has a surviving spouse? Do note however the property I acquired is separate property as it was acquired prior to the marriage and no marital funds have been commingled. I love my husband, but my daughter and I are the ones that paid for the property therefore fair and square I want her to be the sole owner when I pass..
Thank you! :)
Hello Kelly, thanks for reading and commenting. Whether your spouse will have rights to the property will, as a first step, consider whether it is categorized as Florida homestead property. If so, your husband would have a “life estate” and you would need a “homestead waiver” from him in order to protect it for your daughter. If not homestead, spousal rights could still be an issue if it is truly due to the spousal elective share laws in Florida. The work around could be to do trust planning, a postnup or perhaps jointly titling with your daughter. Marital rights are very tricky in FL so you may be wise to seek professional help with this. Let us know if we can help by sending a contact request with phone, e-mail and best time to connect at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hello,
My mother in law recently passed away and we had a Ladybird deed in place on her Florida condo. Unfortunately the condo is in need of many repairs that we cant afford and the HOA are a nightmare to deal with. Do you know if we can disclaim this inheritance?
Steve, thank you!
Based on my title insurance paperwork, the property is defined as homestead
(it was at time of purchase.) Does any additional process need to happen to consider this homestead for my husband, or once he starts living here permanently with me, under primary residence, that would automatically consider it homestead for him as well?
And when you say “jointly titling,” as in my daughter and I? meaning the lady bird deed would not suffice?
Hello Jasmine, unfortunately, the property is yours at this point due to an automatic transfer upon death (assuming a valid lady bird deed) and I’m not aware of a way to disclaim. I think your best bet is to consider selling it and if repairs are need and you can’t afford them perhaps look for an “as is” buyer. This is just general information however because a consultation would be needed to determine the status of the real property.
Best, Steve Gibbs, Esq.
Hi Kelly, blog comments are very limiting and when discussion specific recommendations (beyond general information) I highly recommend you seek a professional consultation because an there are lots of assumptions here on my end. You need someone to review the deed and discuss your goals in detail. Let us know if we can help by connecting at info@gibbslawfl.com.
Best,
Steve Gibbs, Esq.
I would like to transfer my primary residence to my daughter upon my death. If using a ladybird deed will it violate the terms of my existing conventional mortgage and/or be subject to documentary stamp tax on 1/2 principal balance of existing mortgage?
Hello Linda, you shouldn’t violate your mortgage incur or taxes with a ladybird deed because it reserves your right to sell the real property and only concerns succession of the property upon your passing away. However it wouldn’t hurt to connect with your lender to confirm the change with them. Let us know if you need help with the preparation process by e-mailing your best contact information to info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hi, if there is a married man with an enhanced life estate under a lady bird deed and the remainderman on is his adult daughter, when he passes does his life estate first pass to his wife before his remainderman or do you bypass the wife? Note: this is non-homestead property.
Hi Gabriella, thanks for your question. I believe the wife could still claim the FL elective share to ask for at least a portion of the value despite the fact that this is non-homestead. The overall assets would need to be looked at as part of a thorough consultation in order to evaluate the exposure.
Best, Steve Gibbs, Esq.
I just got a lady bird deed but skeptical if it serves the purpose my sister and I intended.
(The lady Bird was done with a specialty deed Enhanced Life Estate Florida).
My wife at the time and I qualified for a home for my sister due to her inability to qualify . Divorce with the ex- wife was inevitable and the property of my sister’s was agree I quick claimed to my sister.
My sister decided to opt out and wanted her daughter to take ownership of the property but I did not want to incur any gift tax or transfer costs. We both agreed that I would continue to reside at the property, pay the taxes, upkeep, insurance. Since, I already had those responsibilities I did not want to lose the homestead of the property. Also, my neice lives in another state. So, we thought to enter into a lady bird with me being ther grantor and my neice the grantee.
1. Was that a correct move for our situation?
2. Why would a title search be ommitted in this scenario? Or should it be done?
3. Who will show on the deed ?
4. If wrong how can it be corrected?
Hello Stephon, thanks for commenting. I strongly suggest that if you do one of these, it is well worth it pay an experienced expert to help you prepare it in order to avoid issues with you beneficiaries are titled and making sure you retain the right to sell, homestead, etc. I can’t give advice via a blog post about “right moves” as that needs to happen in an attorney client relationship. Title issues can range from fairly simple to very complicated and expensive to correct. Let us know if we can help by connecting with Gene at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
totally confused. I was under the impression that Lady Bird Trust were illegal now. They were grandfathered in if made before June 14-2014. Are these still legal? My sister made a Lady Bird deed with a lawyer here in Florida where my mom owns her home . This was done without my knowledge. Now mom needs assisted living or a nursing home. The rest of the family is in Rhode Island. I am in Florida as a snow bird for 7 months a year. Will mom have to sell her Florida home to pay for assisted living? Can she go to a facility in RI or must it be in Florida? In other words does the Lady Bird work in RI. My sister is getting contradictory legal advice. Any help would be appreciated regarding this complicated situation made worse because I am estranged from my family ..( Their Choice)
Thank you
Hello Janette, sorry for your confusion. Lady Bird deeds are not illegal in Florida and I’m not sure what you mean my “lady bird trust. Be wary because there is a fair amount of misinformation on the web. Also, I can’t offer educational insight for other states as those states aren’t in my professional expertise or licensure. It sounds like you need a professional consultation to look more deeply into what is happening.
Best, Steve Gibbs, Esq.
Can a Ladybird deed be left to a charity, such as St. Judes Children’s Cancer Research Hospital? Thank you.
Hi Shelly, thanks for commenting. I haven’t personally used a lady bird deed for a charitable devise and my hunch is that a trust would be a better route to go for confidentiality reasons.
Best, Steve Gibbs, Esq.
Hello Steve. My wife and I are NY residents considering buying a home and establishing residency in Florida in the, hopefully near, post pandemic future. Since we’d like our children to obtain possession of the house upon our passing without having to go through probate, an enhanced life estate deed seems like a good idea It would also protect the house should we be in need of Medicaid. My question is: If later on in our years one or even two of us would need to be in a nursing home close to our kids in New York or New Jersey, would the enhanced life estate still be valid in Florida even though we will most likely become New York or New Jersey residents in the future? If yes, would we be able to rent the Florida property while we’re in the nursing home up north (as non-residents of FL) to offset the nursing home expenses and upon our passing would the property still transfer over to the remaindermen, who are obviously non-residents of Florida, without having to go through probate? If this scenario is not possible, I assume a revocable trust would be an option, but then our Florida Property would not be protected should we have the need for Medicaid, correct? I’m throwing in a lot here, but if we wind up in a nursing home in NY and therefore become NY residents, I believe NY might have some claim on taxing the estate of now NY residents who own property in states that do not collect estate or inheritance taxes such as Florida. However, if upon our demise the house goes directly to the remaindermen, in theory the house is no longer part of the estate and thus would not be subject to NYS estate taxes, correct? I realize this would require a more specific discussion with an attorney, but since, because of the pandemic, we are currently not ready to make a purchase in FL, I am just trying to gather as much useful information as possible to plan ahead.
Hello Michael, thanks for reading and commenting. The short answer is yes, you can have a lady bird deed prepared by an expert and you could rent the real property out down the road. However, for folks that rent property and desire to qualify for FL Medicaid, rental property is allowed as an exception (the income is included in the Medicaid calculation) but the asset is not. In this scenario, a FL LLC is recommended with a property management company to manage income to keep everything above board. You are correct that FL does not collect an inheritance tax. This is about the limit to what I can offer for educational purposes (non-legal advice) on a blog comment. Concerning your other questions, although NY laws concerning Medicaid are often similar to FL, I am not licensed and do not practice there and thus cannot comment. For this kind of in depth analysis, you may benefit from speaking with a NY elder law attorney in a consultative setting as well as a FL elder law expert. Let us know if we can help further.
Best, Steve Gibbs, Esq.
Thank you Steve from the prompt reply. Just one clarification if I may ask. If my wife and I become NYS residents five years or more after we create the Lady Byrd Deed in Florida, will the Lady Byrd Deed still be valid or will there be a need to draw up another one specifying that we are no longer Florida residents?
It would be valid (if properly prepared) and if a FL property then it would need to be done in FL even if you were still in NY. Let us know if we can help.
Best, Steve Gibbs, Esq.
Great plain speak info. Thanks! One thing I”ve been wondering that I did not see addressed here. I inherited via lawyer prepared LBD our homestead which has 3 connecting parcels. I want to divide the parcels between my two children – two parcels (agriculture) to one and one parcel (homesteaded/agricultural) to the other. Should I put all into one LBD designating who gets which parcel or do two separate LBD showing what each individual is deeded? Thanks so much for your information and help.
Hello. This is great information. Thank you so much for sharing it.
In Florida, do you have to pay documentary stamp tax upon recording a Quit Claim Deed Establishing Enhanced Life Estate when there is an existing mortgage?
Also, in our Lady Bird Deed both my husband and I are grantors. When one of us dies, is it better to record a new Lady Bird Deed and, if so, will it automatically revoke the original Lady Bird Deed?
Hello Connie, with a mortgage, this transfer would need to be “subject to” it. Understand that you need actual legal advice and in a blog comment setting I can only offer general feedback for “educational purposes”. Generally, if you and your husband are jointly on the deed and both reserve rights then a new lady bird deed may not be needed. However, these deeds are tricky and need to be professionally done. Let us know if we can help by connecting with Gene at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hello Sue, the proper way to do what you’re suggesting is most likely to partition the property into separate parcels and then prepare separate lady bird deeds accordingly. This is definitely a process that requires expert real estate attorney guidance.
Best, Steve Gibbs, Esq.
Thanks for the reply, Steve. To clarify, the three parcels are already partitioned separately, as they were acquired at different times over the years, if this is the part where you suggest a real estate attorney specialty? If so, as they are already partitioned do LBD covering parcel#1 for son and parcels#2 and 3 on another LBD for daughter?
Most likely (without reviewing anything and for educational purposes only) you would need to do a separate lady bird deed for each parcel. As always, I strongly recommend you seek professional help preparing the deeds as these are easy to mess up and can be costly to correct.
Best, Steve Gibbs, Esq.
Hello, I am power of attny to both my mother and her boyfriend. I will refer to him as “dad”. Mom and dad have been together 2 years and he has filed both a will and lady bird deed leaving everything he owns, to me. He has 4 older children (over 50), one of which he had a life estate deed done with her name on it. He has since changed it to favor me. To our knowledge, none of the children know of the change..yet, as they won’t speak to him because he loves my mother now (their mother has been dead for 9 years). If the one daughter that he originally was going to leave the house to finds out about this, can she legally do anything? He had a lawyer do all of this. Upon his death, if they come to the house and do not know of the change, should I call the police?
Sandra, it is really hard to comment on what may happen after dad’s death. Technically he can do what he wants as long as he is competent to sign documents. The key is having a experienced estate lawyer prepare everything properly to document the fact that he was in his right mind and operating in his own free will. I hope this helps.
Best, Steve Gibbs, Esq.
My husband and I are NY residents. We are seriously considering buying a second home in Florida, and eventually setting up residence there in a few years. Our intention is to set up an Enhanced Life Estate for the house in Florida naming our children as remaindermen. Since we are getting close to buying something soon, given out intention to eventually become Florida residents, as current residents of NY, can we set up an Enhanced Life Estate in Florida and is there any advantage, financial or otherwise, in doing so at the time of purchase of the Florida house, rather than later on, when we finally establish our residence in Florida?
My live in boyfriend of 30+ years wants to do a Lady Bird deed to leave the home to my daughter. He has an adult son, a granddaughter, brothers and a sister. He has another home in another state that will go to the son. Can he use the Lady Bird Deed to leave the home to my daughter?
Thank you.
Is a ladybird deed a better option (for rental properties) to avoid probate than a living trust (it seems less costly and less complicated) ? It sounds like it essentially make the property TOD, much like naming a beneficiary on a savings account.
As far as a homestead property goes: what is the recommended solution (after the owners death) to permit a long time partner to remaining living in the home until death but then have it transferred to the desired heirs (children of original owner) and avoiding probate?
Hello Barbara, sorry for the delay in responding and yes, there is an advantage to setting up at the time of purchase from the standpoint of not having to re-do the deed. However, when you relocate, you may find that you’ll benefit from having a FL revocable trust and this could negate the need for the lady bird deed. Let us know when you’re ready to discuss this option as well as the lady bird deed in more detail by connecting with Gene at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hi Tracy, the short answer is that a lady bird deed could be used for that purpose; however, depending upon the overall estate and other family members involved, a revocable trust may be a better option. I highly recommend professional advice before he makes any moves. Let us know if we can help by connecting with Gene at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hello Lisa, often times people think that trusts are “complicated” simply because they don’t understand them. As an analogy, do you understand how your high tech car works? If you’re not a mechanic, I’m guessing not and yet you probably don’t care and rely upon experts to service it. I say this because trusts are often the simplest and most flexible way to accomplish these kinds of goals. That said, for rental properties an LLC may be a much better option depending on circumstances. Of the 3 options, the lady bird deed may be least favorable due to the lack of flexibility and the need to do a new deed if anything changes. Best policy is a get a professional consultation to consider all factors before acting. Let us know if we can help at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
My wife and I own winter home which is a manufactured home (titles) on rented land in a park in Florida. We pay a monthly HOA fee that covers our rent, membership, etc. In our home state of Missouri, we have TODs or PODs on all our land and assets. We do not have a trust but have a small will that covers anything that might come up that is not TOD or POD. We were disappointed that Florida would not allow a TOD on the home titles. Both of our names are on the title. Without a revocable trust, what are our options to avoid probate should both of us die at the same time? We have researched Lady Bird Deeds but think they may only apply to property as in land owned.
Does the remainderman of the lady bird deed still have to comply with the will and divide the proceeds from the sale of the property with the other beneficiaries ?
Can you explain wise steps remainderman should follow to calculate FMV of inherited property worth less than $500,000 at time of death since LBD avoids probate process (There won’t be an executor, probate referee appraisal value of property, tax form 8971-Information Regarding Beneficiaries, and tax Form 706-United States Estate and Generation-Skipping) What are steps to establish FMV and basis step-up?
Hello John, good question, and you are correct that deeds apply to real property (i.e. land and buildings situated thereon). Other than a trust, your option is really joint titling to avoid probate; however, this is generally only advisable between spouses, family members or partners and not usually advantageous if adding adult children for many reasons. I highly advice you to seek legal advice before acting further as this is only general information offered for educational purposes.
Best, Steve Gibbs, Esq.
Hi Alan, generally, the remainderman may not have to comply with the will; however, if the will mentions the property directly then there could be a viable dispute over the real property. There are always exceptions and an actual review of documents in a consultation setting is most likely needed.
Best, Steve Gibbs, Esq.
Hello and thanks for your question. However, this is a question for a tax advisor in a consultation setting and not appropriate for a blog comment.
Best, Steve Gibbs, Esq.
Steve, Thank you for your response. Yes, the revocable trust would negate the need for a Lady Byrd Deed as far as transferring the house to our kids upon our demise, but it obviously would not protect the house from Medicaid. Perhaps a combination of both, Lady Byrd Deed and Revocable Trust might be appropriate, the first to protect the house from Medicaid and the second to guarantee a smooth transfer of assets (if there are any left) to the beneficiaries/trustees we name in the trust. For the sake of simplicity, if we were to set up a Revocable Trust in Florida could we still place any property/assets we have in NY in that trust or should the NY property/assets be set up separately in a NY trust? I know that NY revocable trusts do allow for out of state properties to be added to the NY trusts, but then our goal is to establish Florida residency to take advantage of the tax advantages Florida has to offer. Obviously we would need to have this conversation with Gene in a more detailed consultation setting as soon as we are ready, but as a rule of thumb, is it possible for NY assets to be placed in a Florida Revocable Trust?
As a general rule, a Florida revocable trust allows an out of state property to be added to it. However, I’m not sure how NY views this and it is up to the state in which the property is located to determine status because the deed to trust would need to be prepared by a NY attorney and recorded in the county there. For Medicaid purposes, the advantage of a lady bird deed in FL is that the property can pass to remaindermen and can be helpful in avoiding liens. A similar thing happens with trusts. You are correct, you need a consultation with a FL and/or NY Medicaid planning attorney depending upon your intended home state of residency. You also need to be aware if relocating that there are time requirements for setting up new residency.
Best, Steve Gibbs, Esq.
My Dad and step mom did an enhanced life estate deed for two different properties that has been in my Dads family since 1936. My Dad passed away this past November.
On one of the properties myself, my two biological brothers and step brother are to be left the after my step mom passes. The other property (grandmothers home and land) was to be left to myself and two biological brothers…
My step moms son is influencing her strongly – as well as also supposedly acquired POA over his mother. My biological brother and I understood the need for her to sale one property, as she is unable to live alone. However, she promised that our grandmothers property would remain ours. Unfortunately, we recently saw all of the land being on the market for sell (they never even told us). So literally, the biological children of family land would receive absolutely nothing…while step mother (who is 80 would get everything) and of course her son would get everything left over after she passes…
Can she do this? Do we have any legal fight? We live in Florida. Her name was added to deeds of both properties. This was not what my father wanted. If they do this…they aren’t honoring what he intended at all.
Hello Linda, that sounds like a difficult problem. If she is on the deeds, then it is certainly possible she has the right of sale unless it can be proven that she was placed on the deeds due to “undue influence” and this can be difficult to prove. It sounds like you need a consultation with a reputable probate litigator in FL and this really isn’t our focus.
Best, Steve Gibbs, Esq.
Steve,
My husband and I live in Ohio and are purchasing a property in Fl. What type of deed should I request the Title company to prepare for the property to pass to our son and daughter after our death? The property will not have a mortgage.
Thank You
Penny
Hi Penny, the title company will most likely prepare a normal warranty deed for you and would not opt to prepare a lady bird deed as this would probably be deemed practicing law. You’ll most likely need to close and have someone prepare the lady bird deed and I recommend that you have it professionally done to avoid costly mistakes. Let us know if you’d like us to coordinate in advance with the title company as we may be able to prepare the lady bird deed in cooperation with the title company to be recorded at time of closing. You can connect with Gene at info@gibbslawFL.com.
Best, Steve Gibbs, Esq.
Steve,
In using a Lady Bird deed to transfer a Florida vacation home to my 3 children, am I able to use the term “in stirpes” in case one of them predeceases us?
Hello Ralph, the short answer is yes; however, I caution you to get professional help in preparing this deed, as mistakes are costly and the cost for professional preparation is pretty minimal. When folks go cheap on deed, big costly problems can erupt later at the time property is distributed or sold.
Best, Steve Gibbs, Esq.
Can a lady bird deed be recorded if the property has a mortgage?
My boyfriend and I have been living together for 26 years. We currently own, as joint tenants with right of survivorship, the home that we currently reside in. He also owns a townhome in another county here in Florida which has a remaining mortgage balance of approximately $110k. Can he quitclaim the townhome to both of as JTWROS, or can he do a Lady Bird deed to have the townhome transfer to me upon death? What is the best way to accomplish this? We would prefer joint ownership with survivorship rights but understand that this could have tax consequences which we are hoping to avoid.
Hello Dennisse, in my experience you should be able to do a lady bird deed with a mortgage, similar to a trust. Upon your death, the property would likely need to be refinanced or the mortgage paid. Let us know if we can help further.
Best, Steve Gibbs, Esq.
Hello Paula, it’s hard to say without knowing a bit more about your situation which would lend itself to a consultation. For example, trusts are often preferable because they are much easier to undo in the event of relationship fallout. Let us know if we can help further.
Best, Steve Gibbs, Esq.
Great blog! Can a husband and wife execute an enhanced life estate for both their home and their vacation home which are in Floria?
Regarding the Enhanced Life Estate Deed: Could the Grantor retain an enhanced life estate for herself and convey a legal life estate to a remainderman Grantee, if he survives the Grantor, and if the legal life tenant Grantee does not survive the Grantor, or upon the legal life tenant’s Grantee’s death, the property devolves to the Grantor’s designated successor remainderman in fee simple?
Hi Linda, great feedback is always appreciated and yes that can be done but a trust may be preferable due to future flexibility AND homestead property is sometimes best left as is. Let us know if we can provide any future guidance.
Best, Steve Gibbs, Esq.
Hello Rick, I’m not sure I understand your question. It appears you’re a lawyer so will refer you back to real property law. What you’re proposing, to grant a life estate to a third party with a separate successor to that grantee and have the results hinge upon survivorship. I’m not aware of a good way to draft this in a lady bird deed and with the various aspects desribed, my immediate thought is to use a trust instead. Thanks for commenting.
Best, Steve Gibbs, Esq.
Hi, I have been researching LBD and this site by far is the best. My mom divorced in 86′ FJUD. restored to her maiden name, and “joint tenants in common 50/50 split’ after minors emancipate; in 2009 dad passed away in NY ,we have death cert.; mortgage is paid; my mom’s sole income is SS. and house is her homestead property. Both my brother and I are >50yrs. Questions, 1- can we use LBD to remove dads name & re-record deed to her maiden name ? or do we need to complete a affidavit of survivorship? 2-Mom wants me to be the executor and full owner bc my brother is a transient/felon. Can the LBD be used in conjunction with A Florida revocable trust?
Hello Marisol, all good questions but rather complexed for a blog comment in terms of offering advice. Generally and for educational purposes only, you would need something else (i.e. the death cert and survivorship) to remove dad’s name from title. Also, generally you wouldn’t use the LBD in conjunction with the rev trust as this would be redundant. Homestead property adds additional complexity to the mix so really a consult is needed prior to acting. Let us know if we can help.
Best, Steve Gibbs, Esq.
I don’t think this is entirely true. Judgment liens in Florida expire after 20 years, and this is after having been renewed at the 10 year mark. Also, the statute of limitations in Florida is 7 years, which means that if the unpaid creditors have not filed against the debtor within the 7 year period, debt can no longer legally be pursued in court. (except for tax debt or mechanic’s lien). Seems to me the creditor is just outa luck since the debt (and hence the lien) would be in the name of the former owner (who is now dead) and the property in now in the remainderman’s name.
Hello Cathy and thanks for your comment. Solid points about judgment liens expiring. I believe the statute of limitations could depend upon the nature of the claim so the 7 could be misleading. I also would be careful about assuming that a creditor is “just out of luck”. Just my humble opinion as I’ve seen some creditors tear up peoples lives who tried to evade them. Best policy, aggressively defend against lawsuits and don’t assume that you can outsmart a creditor unless you are up to endure years of uncertainty and stress. Again, just my opinion.
Best, Steve Gibbs, Esq.
Hi, So my mother had a lady bird deed on her house in Florida with a mortgage still owed and she had a widows homestead. My sister and I become the owners when my mother passed away. I’ve been a resident at the property with my mother since 2014 and when my mother passed away I wanted to stay at the home so I refinanced the home, bought my sister out and paid off the existing mortgage, now I am the sole owner of the property with my own mortgage and I am a first time home owner, so my question is does my mothers homestead transfer to me automatically or do I have to apply for my own? If the homestead transfers to me what do I need to do? Thanks, Jeremy
Hello Jeremy, there are differences of opinion on whether it transfers; however, my understandingis that you would want to go an apply for your own homestead and they may reassess the taxes. However, you’ll want to point out that inherited the homestead from your mother and its also been your homestead.
Best, Steve Gibbs, Esq.
We have an enhanced life estate deed on my mom’s home. My mom has several judgments from credit card debtors recorded against her for unsecured debt. What will happen if she were to pass and we need to sell the residence. Will we need to satisfy ALL the judgments currently in the public records? I know if we were to have let it run through probate in FL (without the lady bird deed) the homestead would have been protected from creditors claims. Was the lady bird deed the wrong way to go?
Hello Val, the homestead status should hold; although, a petition may need to be filed anyway to clear up creditor claims. We handle these petitons and I recommend that you obtain a consultation to look into the details before other next steps.
Best, Steve Gibbs, Esq.
If my Father remarried after he purchased his home and the new wife is not on the current deed and he wanted to file a lady bird deed naming his children as the remainderman, is the new wife required to sign the deed as well?
Thanks,
Kevin
Thank you for this interesting article. I am a Canadian Citizen and sole owner of a vacation home in FL ( fully paid for). I would like to ask if I can have a Lady Bird deed which allows my 2 adult sons to become owners after I pass, rather than my husband. They are also Canadian. I am married to a dual citizen (USA / Canada) who does not wish his name on the deed. Please advise if this is possible given I have a spouse with dual citizenship, or if such a deed will become void. Thank you.
Hello, the short answer is no; however, FL homestead laws require that she would either need to waive her homestead rights or would receive a life interest in homestead property upon his death.
Best, Steve Gibbs, Esq.
Hello Susan, the short answer is the lady bird deed could work for that purpose if the propery is non-homestead. The issue of your husband’s name not being on the deed may be a matter of marital law in Canada or whatever state he is a resident of.
Best, Steve Gibbs, Esq.
Couple have their home in Florida and it is homesteaded. Their son has offered to buy the house and they would retain a life estate. However the life estate will impact their 121 tax exemption. Is it possible to use a Ladybird deed and postpone the transfer to their son until after their death? The son is going to provide additional financial support to his parents during the remainder of their lives and wants some assurance that no other heirs will have a claim on the property. Is there a way to protect him without impacting the validity of the Ladybird deed?
Hello Frank,
The short answer is a regular life estate deed could be used because the ladybird deed gives the life tenant the right to sell the property without the remainderman’s permission. However, a detailed consultation would be needed to determine if other measures could be taken such as the son recording a mortgage against the property, as pre-Medicaid planning benefits may also be considered.
Best, Steve Gibbs, Esq.
My stepfather left my mom about 15 years ago but they have never divorced. Her property is paid off and he signed a Quit Claim deed to transfer the property out of his name, leaving her as the sole owner. She wants to leave the property to me when she passes and were wondering if this would this work for our situation?
Thank you for your time.
Hello Lee-Anna, since they’re still married, he could still potentially make a homestead or elective share claim. The way to prevent this would be to have him sign a homestead waiver or for them to get divorced. This is the short answer offered for educational purposes only, as it sounds like a review of the deed and situation in the context of a consultation is need to confirm the details.
Best, Steve Gibbs, Esq.
I would like to prepare a lady bird deed for my mother’s house. My mother who is a window has asked me to shop around for cost. How much will it cost to file a ladybird deed.
Hello Fred, for a standard ladybird deed there is flat fee pricing that I offer for $595.00 however, my practice is now 100% remote and this requires me to gather information by email or secure file upload AND after preparation, send the completed deed to you with instructions on where and how to file it in your local county recorders office.
If you’d like to get started this way, just connect with me at steven@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Hi there. I saw in your answers to Sandra Deal (Feb 13, 2021) /Sandie Deal (June 16, 2020). In that case, the boyfriend had gifted the home to one of his 4 daughters. Sandra does not say that he used an Enhanced LE Deed, just a LE Deed. If that was the case, I believe the daughter would have had to sign the subsequent Lady Bird Deed as the LE Deed gave her an immediate transfer of a future interest compared with the Lady Bird Deed which is a future transfer of a future interest. Can you comment? I would like to be clear on this point. Thank you.
Hello Jackie, in general you would be correct that a standard life estate deed would require a remainder person to sign off and approve a sale.
Best, Steve Gibbs, Esq.
I think your explanation’s are really great. It gives lots of examples of people using them. I have a lady Byrd deed registered with the county in Florida. Do you have to keep updating the address of the grantee’s by creating a corrective document? My sister & niece keep moving.
I own a condo in Florida. I want to do a Lady Bird Deed. I have three children but only wish to name my daughter on the deed to keep the sale of the condo simple. None are minors and I’m unmarried. One son is disinherited and will receive $1.00 from the proceeds of the sale. This is outlined in my will. Can either of the boys challenge the Lady Bird Deed since they are not named on it? Will I be able to get Title Insurance naming one child on the deed? Thank you for your time. Traci
The short answer would be the address changing doesn’t really impact the distribution but could complicate it a bit.
Best, Steve Gibbs, Esq.
Hey Traci, the short answer is anyone can challenge anything; however, it may be touch to challenge an explicit deed. I recommend that you call a real estate/title attorney about the title insurance.
Best, Steve Gibbs, Esq.
My husband and I own a rental property in FL with my mother. The ownership is 50% me and my husband and 50% is owned by my mother. The rental property is in a FL LLC. My mother who lives in Texas really does not have a need for a living trust with the exception of this rental property. We are trying to avoid the cost of a living trust just for this rental property. With this rental property situation is there a way to use a lady bird deed so that my moms 50% of the property would be split between me and my brother?
Hello Jason, the short answer offered for educational purposes only and without having reviewed the deed is that a lady bird deed allows a seller to sell without the approval of the successors. In your case, mom is a co-tenant and thus selling without approval may be a problem. You could possibly use another route so I recommend seeking a consultation with the real estate/title attorney before doing anything.
Best, Steve Gibbs, Esq.
Hello. My brother has manipulated our mother into a ladybird deed with him as the only remainder person on the deed. (With a “verbal promise” to leave the house to my sister and I when he passes). My sister and I are are worried because he was on NYS Medicaid fraudulently. Our concern is that the house may be confiscated once it is in his name or after his death.
Thank you
Tina C
Hi Tina, it sounds like you may need to consult with an estate litigation attorney. Not my focus.
Best to you.
Steve Gibbs, Esq.
Hello!
Thank you for this article! It’s very useful!
My mom is planning to purchase a property with a Lady Bird Deed and put me there as a beneficiary. Could you please advise if in this case my name will be shown on Property appraisal website related to this property address or on MLS?
Thank you in advance?
Thank you for the article!
Could you please advise if Lady bird Deed is considered to be a future interest and the owner of the property has to file form 709 to IRS?
Hello and thanks for commenting. I really can’t offer “advice” in a blog comment setting and suggest you connect with a real estate attorney in your area and perhaps ask your tax advisor about this. In general and for educational purposes only, a lady bird deed provides a future interest that may or may not materialize depending on whether the grantor still owns it at death. I’ll opt not to comment on the tax question as this is not my forte.
Best, Steve Gibbs, Esq.
I understand that a Lady Bird Deed helps avoid Medicaid recovery because the property does not pass through probate. I also understand that the Deed is not considered a transfer triggering any issues for eligibility regarding 5-year lookback period. However, if someone has 2-3 properties with Lady Bird Deeds, only one of which is the homestead/primary residence, wouldn’t the Medicaid applicant be required to sell the non-homestead properties in order to qualify? For example, if someone had a FL homestead with Lady Bird Deed, a vacation home in VT with a Lady Bird and a rental property in Michican with a Lady Bird, would they be eligible for Medicaid (assuming no other cash holdings) without selling the properties in VT and MI? Any help
Would be appreciated because I do not understand why someone with cash assets facing a potential nursing home situation in say 2 years wouldn’t simply buy property in a Lady Bird state and record the deed prior to applying for Medicaid to avoid 5-year lookback issues. Thank you.
We own an investment condo. Ownerships is with an LE-REM (I am the LE and my sister the REM). We want to sell the property. Do the proceeds of the sale have to go to only me, or can they either go only to my sister, or be split between us? I ask because of the capital gains tax. My income level is puts me in a hgher income bracket than hers and if the sale profits go only to me, we would pay muh more capital gains tax. Thanks.
Hello Rebecca and thanks for reaching out. Your question would require some consultation work to determine your overall situation. Often times people try to simplify legal issues and it just isn’t possible. For example, your suspicion is somewhat correct about properties, lady bird deeds and Medicaid; however, there are some planning moves you can make to keep rental properties and apply for Medicaid in FL.
Best, Steve Gibbs, Esq.
Hello, your question is difficult to comment on without reviewing the deed. Life estate deeds could result in some profits being paid to the remainder person. I recommend you seek a consultation with a real property attorney and get feedback from your tax advisor also.
Best, Steve Gibbs, Esq.
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