Florida lady bird deed

What a lady bird deed does in Florida

A lady bird deed, formally an enhanced life estate deed, reserves a life estate for you while keeping the power to sell, mortgage, lease, or take the property back without your remainder beneficiary's signature. That retained power is what makes it 'enhanced'. At your death the property passes directly to the remainder beneficiaries outside probate. Florida, Texas, Michigan, Rhode Island, Vermont, and West Virginia recognize it, and Maryland, Missouri and Virginia recognize the same idea as a life estate deed with powers.

Formally an enhanced life estate deed. Florida is the deed's home state, and lady bird deeds are widely used here. They preserve the homestead exemption and are not treated as a transfer for Medicaid purposes. For homestead property, the deed does not reset the Save Our Homes assessment as long as you keep the homestead exemption and no remainderman applies for one (Fla. Stat. § 193.155(3)(a)1.).

The Florida law behind this deed

Florida has no section written specifically for lady bird deeds. The instrument runs on the general conveyancing and recording statutes below, which is why the requirements here look like those for any other deed in the state.

When Florida homeowners use a lady bird deed

• Avoid probate while keeping complete control of the house
• Preserve the Florida or Texas homestead exemption and the step-up in basis
• Estate planning where a traditional life estate would give away too much control
• Medicaid planning in a state that does not treat the transfer as a divestment

What Florida requires on the deed

These are the execution and formatting rules circuit court clerks enforce. Getting any of them wrong is the usual reason a deed comes back in the mail.

How to complete and record it in Florida

1. 1Find your current deedYou need the legal description from it, word for word. If you can't find your copy, the Clerk of the Circuit Court can provide one, usually for a few dollars.
2. 2Identify everyone by full legal nameNames must match the current deed and government ID exactly, middle names included. A mismatch creates a gap in the chain of title that shows up years later at closing.
3. 3Complete the deedDeedly builds it with the wording, notary certificate, and 3-inch first-page margin used for Florida deeds.
4. 4Sign in front of a notaryBring photo ID and 2 witnesses. Wait to sign until you are in front of the notary and the witnesses, who must see you sign.
5. 5Record it with the Clerk of the Circuit CourtFile in the county where the property is located and pay the recording fee. Many offices in this state also accept e-recording, but usually only from approved submitters such as title companies. Keep the stamped receipt. It fixes your priority date.
6. 6Tell the people you named where it isAt your death they record a certified death certificate, and in some states an affidavit, to show that your life estate has ended. Ask your insurer whether they should be added to the policy now.

What it costs in Florida

Florida charges a documentary stamp tax of $0.70 per $100 of consideration ($0.60 per $100 in Miami-Dade County, plus a $0.45 surtax on non-single-family property).

Exemptions that commonly apply to a transfer like this: A deed of homestead property between spouses (one spouse to the other, one spouse to both, or both to one) where the only consideration is the existing mortgage (§ 201.02(7)(b)) and A deed of the marital home between spouses or former spouses made under a dissolution-of-marriage action, with tax paid on such a deed up to 1 year before the dissolution refundable (§ 201.02(7)(a)). You have to claim the exemption. The recorder won't apply it for you.

Where to record it in Florida

Florida deeds are recorded with the Clerk of the Circuit Court in the county where the property sits, not where you live. There are 67 counties in Florida.

Many Florida recording offices accept e-recording through vendors such as Simplifile, CSC, or ePN. E-recording is generally open only to approved submitters such as title companies, attorneys, and lenders, so if you prepared the deed yourself, plan to record in person or by mail. Some offices accept filings from the public through those vendors; your county's website will say.

Recording offices we cover in Florida: Miami-Dade, Broward, Palm Beach, Hillsborough, Orange, Duval, Pinellas, Lee, Polk, Brevard, Pasco, Volusia. See all Florida recording offices.

What a lady bird deed does NOT do

Being honest about the limits is more useful than a sales pitch. Every one of these catches somebody out.

• Florida, Texas, Michigan, Rhode Island, Vermont, and West Virginia accept it, and Maryland, Missouri and Virginia recognize the same idea as a life estate deed with powers. Some counties elsewhere will record one, but recording is not the same as validity.
• It does not defeat Medicaid estate recovery in every state, and the rules change. Confirm your state's current position before relying on it.
• It does not remove or restructure a mortgage. The loan stays in your name and on the property.
• It is a specialized instrument. If your estate is large, taxable, or contested, this is a conversation for an attorney rather than a form.
• It does not override Florida's homestead protections. If the owner who dies last leaves a spouse or a child under 18, the home can pass to them under Florida law instead of to the people named here (Fla. Const. art. X, § 4(c); Fla. Stat. §§ 732.401, 732.4015).

Quirks of Florida law that catch people out

• Florida requires TWO witnesses to the grantor's signature in addition to the notary. This is the single most common reason a Florida DIY deed gets rejected. The notary can be one of the two witnesses, but you still need a second person. Each witness also prints a name and post-office address under the signature (Fla. Stat. § 695.26(1)(c)).
• The deed must show the name and post-office address of the person who prepared it (Fla. Stat. § 695.26(1)(b)). Deedly prints them in the PREPARED BY block.
• Florida homestead law requires BOTH spouses to sign a conveyance of a homestead property, even when only one spouse's name is on the deed. The exception is a deed from one spouse to the other, which the receiving spouse need not sign (Fla. Stat. § 689.11(1)).
• Documentary stamp tax applies to any mortgage balance the grantee takes subject to. A $0 sale price does not mean $0 tax if there is a loan on the property, unless it is a homestead transfer between spouses (Fla. Stat. § 201.02(7)(b)).
• Leave a 3-inch by 3-inch blank block at the top right of page one. Florida clerks stamp there and will reject deeds that fill it.
• Most Florida counties record deeds with the Clerk of the Circuit Court, but Broward County records them with its Records, Taxes and Treasury Division and Orange County with the Orange County Comptroller. Send the deed to the right office.
• Florida does not have transfer-on-death deeds. The lady bird deed is Florida's probate-avoidance instrument. If the property is your homestead and you leave a spouse or a minor child, Florida's homestead rules can override it at your death (Fla. Const. art. X, § 4(c); Fla. Stat. §§ 732.4015, 732.4017).