One way to avoid probate in Florida without using a revocable living trust is through creating an Enhanced Life Estate deed (also known as a "lady-bird" deed). While Florida probate may or may not be the terrible ordeal some perceived it to be, good estate planning generally tries to avoid probate.
Q: How do I avoid probate with my real property (land)?
A: There are a number of ways to avoid probate for real property, some good and some bad. A popular solution is to create a revocable living trust and to deed your land to that trust. This allows you to retain control over the property during your lifetime and still avoid probate upon your death. Another way to avoid probate is by adding joint owners on your property, but this is not advised for a number of reasons. This blog post shows why you would not want to add a child to your home to avoid probate. Other ways to avoid probate with real property is by creating regular Life Estate deeds and also Enhanced Life Estate deeds.
Q: What is a Life Estate deed?
A: A life estate deed is an irrevocable transfer of your property to remainder beneficiaries (“remainderman”) while reserving the ownership and right of use of the property for your lifetime. This transfer avoids probate upon death while retaining ownership interest for your lifetime. The main problem with this type of deed is that the gift is irrevocably transferring an interest to the grantee. If conflicts come up with the grantee and you want to mortgage or sell the property, you are not the sole property owner. Thus, the regular life estate deed is not very flexible and we very rarely use them in our planning.
Q: What is an “Enhanced” Life Estate deed?
A. This type of deed that transfers property to a grantee while the grantor (you) retains the ability to live on said property for the rest of his or her life. Additionally, the deed creates flexibility by allowing the grantor to change their mind, sell the property, mortgage the property and do whatever they want with the property during their lifetime. Only upon death does the title vest in the grantee, giving the grantee full ownership of the property at that time. The grantee does not have any rights in the property while the grantor is alive because the grantor reserves the right to do all of these enhanced powers without the remainder beneficiary’s consent.
Q: What are the drawbacks to an Enhanced Life Estate deed?
A. The greatest drawback to the Enhanced Life Estate deed is lack of flexibility. First, title companies and mortgage companies are not very familiar with their use so problems may occur you want to refinance the property. Next, if the deed has multiple grantees, the deed does not control what happens upon one of the grantee’s death or incapacity. This means that if a grantee (i.e., child) dies before the grantor, the grantee's interest would be distributed as part of the grantee's estate - through the probate process. A living trust is, therefore, much more flexible than this type of deed as it can control where the property goes if one of the grantees dies. Generally, a revocable living trust is recommended for more complicated estates, or if children do not get along, among other reasons. We recommend Enhanced Life Estate deeds only for more simple estates!
The Enhanced Life Estate deed may be the preferred very simple way to avoid probate in certain simple circumstances. We would be glad to further answer your questions to best satisfy your own needs.
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If you want to know the best way to protect your estate, please download a copy of my book, the Top 20 Rules for Protecting Your Florida Estate, or attend one of my free monthly seminars on estate planning!