Lady Bird Deeds in Florida: Selling the Home During Life or After a Death

What a Lady Bird deed is

The owner deeds the home to the people who will receive it later (lawyers call them remaindermen) but keeps a life estate, together with the power to sell, convey, mortgage, or otherwise dispose of the property without the remaindermen joining. That reserved power separates it from an ordinary life estate deed, where the owner can’t sell or mortgage without the remaindermen’s consent, as a 2019 column for The Florida Bar’s Real Property, Probate and Trust Law Section explains.

When that Section added title standards for these deeds in 2019, it noted that no Florida statute governed them and court authority was scant, and called its guidance the Section’s consensus view, not a court or legislative rule. This page follows Standards 6.10 through 6.12. The 2019 Bar Journal column mentioned above also cautions that no statute sets out the language for these deeds and that some may not be insurable, which is why the title company’s review of the actual deed matters before listing.

How to tell whether the home has one. Look up the recorded deed in the county’s official records. The hallmark is a reserved life estate “with full power and authority” to sell, convey, or mortgage “without joinder of the remainderman.” If you instead find a signed deed that was never recorded or handed over, tell the attorney: the same Bar column explains that an undelivered deed can pass nothing.

Why it usually keeps the house out of probate

The Florida Bar’s consumer pamphlet describes probate assets as those owned in the decedent’s sole name at death, or co-owned without a provision for automatic succession at death. With a Lady Bird deed, the owner holds a life estate and the deed already names who takes the remainder, which is why the Bar’s real property section, in its comments to Standards 6.10 and 6.11, says these deeds are used to avoid probate. When the owner dies without having sold, the beneficiaries take the home under the deed itself, subject to the homestead exception below.

The deed covers only the home; other assets in the owner’s sole name may still need probate.

Selling while the owner is living

The owner is still in charge. Under Standards 6.10 and 6.11, an owner who reserved these powers can sell or mortgage during life without the remaindermen, and the buyer takes free of their claims, even a judgment lien against a beneficiary. If it is the owner’s homestead and the owner is married, the spouse must join, as the Florida Constitution requires.

• If the recorded deed reserved these powers, the beneficiaries usually don’t need to sign the listing or the deed. The title company makes the final call after reviewing the deed’s wording.
• In the title standards’ examples, the sale deed recites the reserved power, and the comment to Standard 6.11 says any deed meant to end the beneficiaries’ interest should clearly say so. The title company and attorney will set the wording.
• Deeds on the common model let the owner keep the proceeds.
• If the owner can no longer sign, whether someone else can act depends on the power of attorney and the deed; see the power of attorney guide.

After the owner’s death: what the beneficiaries usually need

The buyer’s title company sets the exact list, but expect these.

1. The recorded Lady Bird deed, and confirmation nothing replaced it.If the owner later signed a deed meant to end the beneficiaries’ interest, recorded or not, give a copy to the title company and attorney. The title standards warn that such deeds can raise questions about who owns the home, so they can work out which deed controls.
2. A certified death certificate without the cause of death.Florida clerks record certified copies of Florida death certificates that leave out the confidential cause-of-death information, and another state’s certified copy as issued (s. 28.222). Any adult can order that version from the Florida Department of Health online through VitalChek or by mail; copies showing the cause of death are limited to close family and others with a documented interest. A lawyer writing to The Florida Bar Journal described title passing by filing the death certificate in the official records.
3. Answers about who survived the owner.Was the home the owner’s homestead? Was the owner married? Was there a minor child? Those answers decide whether the limits below apply.
4. Every beneficiary’s signature.When the deed names more than one beneficiary, all of them must join in the sale. Florida law allows a deed to be signed and witnessed electronically through audio-video communication technology under the online-notarization rules (s. 689.01(2); s. 117.201). Ask the title company whether it offers remote online closings for out-of-state signers.
5. Mortgage and lien payoffs.For a mortgage, the Consumer Financial Protection Bureau says to contact the servicer, who may ask for proof of your right to the home, such as a death certificate. A judgment against a beneficiary can attach once the owner has died and may need a release before closing.

Homestead: where the deed can be overridden

“Homestead” means three things in Florida: the property-tax exemption (see the homestead exemption guide), protection from most forced sales by creditors, and limits on who can receive the home at death. The third matters here.

Article X, section 4(c) of the Florida Constitution says a homestead isn’t subject to devise if the owner is survived by a spouse or minor child, except that it may go to the spouse when there is no minor child. Section 732.4017 says a lifetime transfer of homestead isn’t treated as a devise if the owner keeps no power to revoke or revest it. Whether a Lady Bird deed’s reserved power to sell counts as that kind of power is a legal question. Standard 6.12 takes the position that the beneficiaries take full ownership at death only when that doesn’t violate the constitutional restriction. Ask a Florida probate attorney how it applies to your deed. Based on Standard 6.12’s examples:

The waiver wording comes from s. 732.7025: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”

When the restriction applies, the comment to Standard 6.11 says signatures from all of the owner’s heirs, including the surviving spouse, may be required. If the owner left a spouse and descendants, Florida’s homestead descent statute (s. 732.401) gives the spouse a life estate with the remainder to the descendants, or a one-half interest if the spouse elects it within 6 months after the death. If this describes your family, talk with a Florida probate attorney before listing.

Medicaid, taxes, and other professional questions

Where Mo fits

Mo Mufti is a Florida REALTOR® with LPT Realty, LLC. He doesn’t prepare deeds, decide whether homestead rules apply, or give legal or tax advice. Working with your estate attorney and title company, he can pull the recorded deed for them, price the home, plan preparation and showings, send written updates at the direction of whoever has authority, and coordinate signing when family lives out of state.