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What is a Lady Bird Deed and why is it beneficial?
Florida is one of only a handful of states that recognize a Lady Bird Deed. A person who creates a Lady Bird Deed, also known as an Enhanced Life Estate Deed, transfers property to himself for his lifetime, creating a life estate in the original owner, and names one or more people, entities, trusts, or organizations to inherit the property.
The life estate retained by the original owner of the property is enhanced, meaning that the owner retains actual ownership of the property until death, and can change the deed, mortgage, or sell the property as desired during their lifetime without permission or involvement of the remainder beneficiaries. When the owner of the property dies, the property is automatically transferred to the new owner(s) listed on the ladybird deed. A house that transfers through a life estate deed completely avoids probate because it transfers at death, and therefore does not become a part of the Grantor's estate.
The name Lady Bird deed came into use in the 1980's, when Jerome Ira Solkoff, a Florida lawyer, describing the concept of the "retained life estate deed" in fictional educational materials, used the name of President Lyndon Johnson's wife, "Lady Bird", as the landowner. Since then the name Lady Bird Deed has been used by most attorneys when referring to a "retained life estate deed".
Benefits of a Lady Bird Deed
- Ensures that the property passes to the person or people of the Grantor's choosing by avoiding probate of the property.
- Grantor maintains the right to use and profit from the property for their lifetime
- Grantor maintains the right to sell, mortgage, or even execute a new lady bird deed to the property at any time, without having to obtain the permission or authorization of the grantee on the previously executed lady bird deed.
- Grantor avoids making a gift that might be subject to federal gift tax
- Does not risk the Grantor's Medicaid eligibility because it is not considered a "transfer" until the Grantor passes away.
- Prevents the property from being sold upon your death to repay the Medicaid benefits conferred upon the Grantor, because the property passes to the Grantee(s) upon the death of the Grantor and does not become an asset in the estate of the Grantor.
- You keep your homestead real estate tax exemption, and the county will not reassess the property to raise taxes.
The Lady Bird Deed and Medicaid
Medicaid is a government program that provides Florida residents with long-term health care coverage. Medicaid benefits are intended for people who can't otherwise pay for their medical care. To apply for Florida Medicaid, the state's Institutional Care Program, an individual must provide the Department of Children and Families with a detailed list of all assets.
The purpose is to ensure that all available financial resources are used to pay for care before Medicaid funds are used. The value of all qualifying assets, called countable assets, is calculated and used as the basis for creating a Medicaid eligibility waiting period.
If a time should come when you require long-term care and you apply for Medicaid, the government will impose a five-year "look back" period on your eligibility. This means you cannot transfer ownership of property within five years of making the application. The extent of your eligibility depends on the value of assets you own at the time you apply.
Less is more, and many people erroneously believe they can simply give property away before applying, however, transfers are subject to this five-year period, and assets given away during this time can be pulled back into the value of your estate. Because an enhanced life estate deed allows you to retain control over the property during your lifetime, it doesn't qualify as a transfer until the death of the Grantor.
If you receive Medicaid benefits during your life, then after your death the State will make a claim for repayment from any assets in your estate. The State will not be able to make a claim against any property with a valid lady bird deed because the property doesn't become part of the decedent's estate. The property automatically transfers into the ownership of the Grantee listed on the lady bird deed.
Tax Planning and Benefits with a Lady Bird Deed
There are a few tax benefits for a Lady Bird Deed in Florida, such as avoidance of the Federal gift tax. The Lady Bird transfer is an incomplete gift, meaning there is no requirement to file a gift tax return. There has not been an effective transfer during the owner's lifetime. Moreover, the Florida Department of Revenue assesses minimum documentary stamp taxes on Lady Bird Deed property transfers as long as the grantor of the deed is the same person who retains the life interest. This means that your documentary stamp taxes would only be based upon a sum of $10.00 consideration, instead of the value, or sales price of the home. This can potentially save your heirs a few thousand dollars. If the deeded property is a homestead, there will be no loss of homestead tax exemption and the county will not reassess the property to raise taxes.
Estate Planning with a Lady Bird Deed
A lady bird deed, if done correctly, can be a very useful estate planning tool. There are many advantages of using a Lady Bird deed over other types of deeds. If you feel that this type of deed may be beneficial to you, would like more information or would like to discuss other possible options, please call me at (781) 239-3500 or (904) 944-1704.