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Understanding the Florida Life Estate DeedUnderstanding the Florida Life Estate Deed

Understanding the Florida Life Estate Deed

23 Apr 2018

When it comes to estate planning, it pays to consider each and every option for protecting your legacy. One of the best legal instruments available to Florida residents is the Life Estate Deed, a special type of deed that allows you to have greater flexibility and control over the future of your estate. Learn how this deed works and how Marina Title can help you incorporate it into your estate plan.

 

The Basics and Benefits of a Life Estate Deed
Also known as a Beneficiary Deed or Transfer on Death (TOD) Deed, a Life Estate Deed allows for the automatic transfer of your property to one or more persons, called remaindermen, upon your death. The deed creates what is known as a “life estate,” in which you continue to possess and use the property as a “life tenant” for as long as you live. There are many benefits to this arrangement:

Probate Avoidance – The subject property of the deed can pass from you to your remaindermen without the need for probate.

Peace of Mind – Once the Life Estate Deed is signed and recorded in the public records, there is no need for any other instrument to transfer the property to the designated remainderman.

Medicaid Asset Protection– Transfers by a Life Estate Deed do not count for the purposes of determining Medicaid eligibility, and the property cannot be recovered by the state after your death.

Tax Savings – With a Life Estate Deed, federal tax law treats the property as though it was held until your death. Thus, it can quality for a stepped-up basis that eliminates any appreciation that accrued in the property, thus saving a lot in income tax.

Saving Legal Fees – Unlike a living trust, which has similar benefits, a Life Estate Deed tends to be much cheaper to prepare while more effective in many respects.

Keeping the Homestead Exemption – Since the Life Estate Deed does not transfer the property until your death, its execution does not impact your current exemption – thus, the asset protection benefits of Florida homestead laws remain.

 

The main drawback to the Life Estate Deed is that once it is executed, you have the right only to live on the property: you cannot mortgage, lease, rent, or sell it unless you obtain the consent of the remaindermen.

 

Moreover, while the Life Estate Deed allows you to keep your Homestead exemption in most cases, it does not allow you to bypass Florida homestead laws with respect to devisees: under Florida law, if you are survived by a spouse and lineal descendants (children and grandchildren), then your spouse gets a life estate in the homestead while your lineal descendants receive a vested remainder interest. There is no way to get around this with a Life Estate Deed unless it conveys your homestead to your spouse and direct descendants.

 

Life Estate Deed vs Enhanced Life Estate Deed
Also known as a Lady Bird Deed, the Enhanced Life Estate Deed is a special type of deed recognized only in Florida and two other states (Michigan and Texas). As the name suggests, it is an improvement over the common Life Estate Deed in one key way: the life tenant maintains complete control over the subject property for their lifetime. Therefore, the life estate holder can mortgage, lease, rent, or sell the property without needing the consent of the remaindermen named in the deed. This is in addition to all the benefits of a Life Estate Deed mentioned before.

 

Hire a Qualified Expert
Like any estate planning tool, the Florida Life Estate Deed and Enhanced Life Estate Deed should be prepared with the help of an attorney to ensure that the conveyance is done correctly and is legally binding. The attorneys at Marina Title specialize in a broad range of real estate and title services, including advising clients on the best strategies for handling their real estate. To learn more, call (305) 901-5628 or email info@marinatitle.com.

 

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