By Attorney Wyon F. Wiegratz
As a licensed attorney in both Florida (FL) and Wisconsin (WI), I am often asked if FL has a transfer on death (TOD) deed similar to that in Wisconsin. Unfortunately, FL has yet to adopt a statute allowing for a simple transfer on death deed. A transfer on death deed is where you can name a future beneficiary to receive title to your property without having to give up present ownership of the property and without having your beneficiary have to go through probate after your death to confirm their right to the property. Yet, FL does have what they call a “Lady Bird” deed that works similar to a TOD deed.
The Lady Bird deed takes its name from Lady Bird Johnson, President Lyndon Johnson’s wife who was a contingent owner of their real estate in Texas. A Lady Bird deed is a life estate and a remainder deed with the life tenant, the grantor of the deed, retaining the right during their lifetime to revoke that designation.
The Lady Bird deed is executed with the same formality as any other deed in FL. That is, the grantor needs to have two witnesses and a notary. It is subject to the same recording fees, but only requires a minimum document stamp fee since there is no consideration for this gift of a revocable remainder interest. A parent can list several children as the remainder owners on his or her death and they would all would become common tenants in the property unless a different arrangement is expressed, such as joint ownership with survivorship. On death of the grantor (life tenant), the remainder owners confirm full ownership merely by recording some documents. These typically include an approved death certificate, an affidavit of survivorship and an affidavit regarding taxes. Since the grantor has retained a life interest until their death, the property receives a step up in its tax basis to its then fair market value. Thus the property can be sold by the remainder owners with little or no capital gains tax consequence at that point.
If you plan to transfer FL real estate and want to avoid probate it is important that you seek the advice of a licensed FL attorney.
Disclaimer: The above content is intended to provide general information regarding the subject matter covered. The provision of this information is not intended by the author as legal advice. If you need or desire legal advice, you should consult an attorney for advice specific to your situation. Further, laws change over time so the information should be verified before relying on it.