A "Lady Bird Deed" (or more accurately called an "Enhanced Life-Estate Deed") is a type of deed which provides the grantor--i.e. the real estate property owner--with certain rights during life, with the remaining interest going to a named grantee at the grantor's death. The grantee under a Lady Bird Deed receives a "remainder" interest.. This means that the grantee gets title to the property upon the death of the grantor but has virtually no rights during the grantor's life. Florida is one of a list of states that recognize the use of this type of deed.
Not uncommonly, we have prospective clients come into the office after a loved one has died. Their request is often simple...for example:"I need a deed to put Mom's house into my name. Her Will says I'm supposed to get it. Can you prepare that deed for me?" Unfortunately, it's not that simple. In most instances, there will need to be a court order to transfer the property. And in Florida, that means opening a probate.
In Florida probate, certain types of disputes are considered adversary proceedings. This designation has several implications, including that fact that the Florida Rules of Civil Procedure apply. In effect, an adversary proceeding proceeds as if it were a civil lawsuit within the probate. In particular, the parties can conduct discovery, including Requests for Production of Documents, Interrogatories, and taking depositions.
In Florida, probate is a court proceeding whereby a deceased person's final affairs are resolved and assets are distributed. There are two types of probate in Florida: summary administration and formal administration. In a summary probate, estate assets must not exceed $75,000 (not including the homestead) and there must be no creditors--or all creditors must be dealt with. Essentially all other probate cases fall under "formal" administration.
With effective estate planning, probate in Florida can almost always be avoided. This can be accomplished by establishing a Living Trust (also referred to as a "Revocable Trust") and transferring assets into the Trust before death. Avoiding probate may also be accomplished by use of beneficiary or "pay-on-death" designations with certain financial accounts, annuities, retirement accounts and life insurance policies.
Having a Living Trust has a number of advantages. A person can set up the Trust so that their assets can by-pass probate. This saves on time and expense in the distribution of the person's assets. In addition, by not going through probate, the distribution is private and not subjected to public disclosure.
As an estate planning lawyer, I sometimes have a client ask whether they are entitled to inherit from their spouse. In other words, can their spouse cut them out of an inheritance? For the most part, the answer is that one spouse cannot be "written out" altogether from their spouse's estate. Unless there's a Pre-Nuptial Agreement in place, the surviving spouse has certain rights that arise as a matter of Florida law.
Many times clients who have a Living Trust ask whether they also should also have a Last Will & Testament. After all, doesn't the Trust do essentially everything without needing the Will? Most experienced estate planning lawyers would agree that the answer is a resounding "yes." Even though you have a Trust, you should still have a Will--a special kind of Will often referred to as a "Pour-Over Will."
One of the most common misconceptions I run into as an estate planning lawyer is that many people think that if they have a Last Will and Testament in Florida, probate will not be necessary. The reality is that a Will sets forth the deceased person's wishes--such as designating the beneficiaries and the Personal Representative to oversee the estate. In essence, the Will acts as the "roadmap" for the probate court to follow. But the important thing to understand is that the Will is not self-implementing--it is the power given by the probate court that implements the wishes set forth in the Will.
A Living Trust (also sometimes called a Revocable Trust) is a written document which allows the person setting it up to provide for the holding and distribution of their assets. In effect, a Living Trust is much like a Last Will and Testament in that it designates to whom assets are to be distributed and who will be in charge of distributing them. However, the way the Living Trust accomplishes these objectives is significantly different and thereby offers some definite benefits to both you and to your loved ones. Here are the major benefits: