Florida is one of only a few states that recognize an "Enhanced Life Estate Deed" which is commonly known in other states as a "Lady Bird Deed." With the ability to have a life estate deed to pass real estate automatically upon the owner’s death to a named recipient, Florida residents can bypass the need for probate of the family home and still pass it to their heirs. Thus, if a person has a relatively small estate not otherwise needing probate (except for the required filing of the Last Will & Testament), then the use of an Enhanced Life Estate Deed can simplify their estate planning needs and allow them to focus more on the naming of agents for their other documents such as a Durable Power of Attorney, Healthcare Surrogate, HIPAA information recipient and other Advanced Care Directives.
One of the primary reasons for using the Enhanced Life Estate Deed is to avoid probate; however, the benefit for the current owner is that they retain the full right to sell, use or otherwise deal with their property without the need of obtaining the consent of the future recipient, known as the "remainderman." Since the remainderman will receive the property only if the current owner still owns it at death, their possible interest in it is considered contingent, and they will have no control over what the current owner does with the property. This ability of the current owner to do as they please with the property without involvement of the remainderman is what makes this deed preferable to many individuals over the customary life estate deed which gives the remainderman a current legal right or interest in the property.
Another feature of the Enhanced Life Estate Deed is that it is not determinative of the “warranty” of title to the property. Therefore, it can be used regardless of whether the property is being transferred by quitclaim deed, special warranty deed or warranty deed. This tool is becoming more popular with un-remarried widows and widowers in Florida to allow for the passage of their home without probate should they still own it at death. Caution: There is a limitation on this type of deed in that it is not effective if the current owner has a minor child, as then issues such as homestead rights prohibit certain transfers.
If you would like to know more about this type of deed for use in estate planning, please contact us and we will be happy to meet with you to discuss your options.