Deeds are used to convey the legal interest in real estate from the existing owner
(known as the grantor or seller) to the new owner (known as the grantee or buyer).
In order to validly convey title to real property, it must be done in writing, thus the
conveyance by way of a legal document known as a deed.
There are a variety of deeds used to convey real property. In the elder law and estate planning context, Elder Law Associates PA assists our clients with the conveyance of real property:
- From one spouse to another
- From parent(s) to child(ren)
- As an outright transfer
- With a retained life estate
- With a retained enhanced life estate (aka “lady bird deed”)
- Into or from revocable and/or irrevocable trusts
Determining which deed is appropriate requires careful analysis of the purpose for which the transfer is being made, the planning goals and objectives, and tax and homestead considerations. Under Florida law, certain transfers are subject to “document stamp taxes.” Further, certain transfers may cause the owner to lose the coveted “homestead status” afforded certain Florida homes.
Elder Law Associates PA assists our clients in navigating the above issues to assure that real property is conveyed effectively with the best possible tax and homestead treatment available.
Preparing Florida Deeds
As you know, the New York-Florida connection is alive and well, and stronger than ever. With so many New York residents owning second homes/vacation homes in Florida, it’s likely they will also need estate planning, elder law and special needs planning solutions involving these properties.
When it comes to preparing Florida deeds, you want to make sure you are, considering everything and avoid exposing yourself to potential liability. Nobody understands that more than Elder Law Associates PA, with our Partner, Attorney Howard S. Krooks, Esq., CELA, CAP, admitted to and actively practicing in both New York and Florida. Elder Law Associates PA is here to help assist with New York/Florida planning issues, and to prepare Florida deeds; whether it involves transferring property into a revocable trust, an irrevocable trust, intra-family transfers, or the use of Florida-specific lady bird (also known as enhanced life estate) deeds.
One way a person can avoid probate is through the use of a revocable trust. Florida has specific rules for property being transferred into a revocable trust and you must be especially cautious when dealing with real property in Florida. If you seek homestead protection in Florida, then proper homestead language must be in the deed. In addition existing mortgages on the property have an impact on how the Florida deed is prepared and the existence of a mortgage is likely to result in the payment of document stamp taxes in Florida. For these reasons, it is critically important that careful analysis be performed before a deed is signed transferring the property into a revocable trust. Elder Law Associates PA is here to assist you with all of these issues.
Many people seek asset protection through the use of an irrevocable trust. All of the same issues described above apply to irrevocable trusts as well. You may be surprised that the homestead exemption may also be preserved in an irrevocable trust as long as the proper language is included in the trust. The language must satisfy Florida statutes and the Florida Constitution in order to fully protect homestead rights. When real property is transferred into an irrevocable trust, trust the experts at Elder Law Associates PA to handle this all important asset protection planning strategy. You can rest assured that your home will be preserved as well as your Florida Homestead Exemption!
Some may desire to gift their interest in real property to a family member (i.e., with the addition of a new spouse to a deed, a transfer of an interest to a child or sibling, etc.), or you may require a transfer of property after dissolution of marriage. In such cases, a Florida deed is required to effectuate the transfer. We handle all types of intra-family transfers at Elder Law Associates PA and we’d be happy to help you with this type of transfer.
Lady Bird (Enhanced Life Estate) Deeds
Florida has a unique type of deed referred to as the “lady bird” deed. A lady bird deed, also known as an enhanced life estate deed, allows property to pass automatically to one or more designated recipients at the death of the grantor, eliminating the need for probate and the need for an estate or trust administration. In this deed, the grantor retains the right to sell, use, mortgage, and/or otherwise deal with the property during his/her lifetime, without the consent of the remaindermen (notice how this differs from a traditional life estate deed in New York, where the consent of the remainder persons is required before any transfer can occur). Upon the death of the grantor, the remainder persons simply file the grantor’s death certificate in the land records, allowing the property to be transferred to the remainder persons without the need for probate. The benefits of a lady bird deed are as follows:
- Provides the grantor with complete control of the property during his/her lifetime;
- Allows the grantor to retain the right to use, profit from, or sell the property during his/her lifetime; and
- Allows the grantor to avoid probate and trust administration at his/her death.
You should be aware that lady bird deeds are foreign to the New York Department of Social Services and will create problems for Medicaid eligibility in New York. Although created validly under Florida law, New York Medicaid will consider most properties conveyed by lady bird deed as an available resource.
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I have been in the Real Estate Business for a little over 50 years and have dealt with literally thousands of attorneys over that time. Ellen Morris has handled my personal account - every time I always comment how great she is.
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