Probate can take time, create more expenses, and make certain aspects of an estate part of the public record. For that reason, many people look for ways to transfer real estate to their loved ones without requiring a formal probate administration.
One tool that is used for this purpose is a Lady Bird deed. But what is a Lady Bird deed, and does it actually avoid probate in Florida?
In many cases, the answer is yes. This deed can allow Florida real estate to pass directly to designated beneficiaries upon the owner’s death without becoming part of the probate estate.
What Is a Lady Bird Deed?
A Lady Bird deed is known as an enhanced life estate deed. This is a type of deed that allows a property owner to transfer real estate to beneficiaries while retaining complete control of the property during their lifetime.
With a traditional life estate deed, the property owner gives away certain future interests in the property immediately. However, this can limit the owner’s ability to sell, refinance, or otherwise deal with the property without the consent of the remainder beneficiaries.
A Lady Bird deed is different. The property owner retains an enhanced life estate. This allows them to:
- Continue living in the property
- Sell the property without beneficiary approval
- Mortgage or refinance the property
- Change the designated beneficiaries
- Revoke the deed entirely
Since the owner maintains control during their lifetime, no ownership rights pass to the beneficiaries until the owner’s death.
How Does a Lady Bird Deed Work?
A Lady Bird deed names one or more beneficiaries who will automatically receive ownership of the property when the owner dies. For example, a parent may execute a Lady Bird deed naming their two children as beneficiaries. During the parent’s lifetime, they continue to own and control the property just as they did before the deed was signed.
When the parent passes away, ownership transfers directly to the children. The property does not become part of the probate estate for purposes of transferring title.
This automatic transfer is what makes the Lady Bird deed an attractive probate-avoidance tool for many Florida residents.
Does a Lady Bird Deed Avoid Probate?
In most situations, yes. Since the property passes directly to the named beneficiaries upon the owner’s death, the real estate does not need to go through probate to transfer ownership.
Florida probate is required when a deceased person owns assets solely in their name with no beneficiary designation or automatic transfer mechanism. A Lady Bird deed has that automatic transfer mechanism for the property covered by the deed.
However, this deed will only affect the specific property described in the deed. Other assets may still require probate, depending on their title and whether beneficiary designations exist.
Florida Law and Homestead Property
For Florida homeowners, the state’s homestead laws could play a role. There could be certain restrictions when transferring homestead property, especially when a spouse or minor child survives the owner.
Fla. Const. Art. X, § 4, the state’s homestead protections can affect how property passes at death and may impact estate planning decisions. Since homestead issues are highly fact-specific, legal guidance may be required before executing a Lady Bird deed involving a Florida homestead.
Contact a Florida Probate Attorney
So, what is a Lady Bird deed, and does it avoid probate? In many cases, this deed allows Florida real estate to pass directly to designated beneficiaries upon the owner’s death without the need for probate. However, the property owner retains full control of the property throughout their lifetime.
If you have questions about a loved one’s estate, whether probate is necessary, or how property passes after death in Florida, Niebla Probate Firm can review your situation and help you understand the next steps.
