The short answer: A Lady Bird deed and a living trust are two ways to pass your Florida home to loved ones without probate (the court process that settles a person's estate). A Lady Bird deed is a special deed for real estate only. A revocable living trust can hold your home and many other assets. Neither one is always better. Rules about spouses, minor children, Medicaid and taxes can change the answer, so talk to a Florida elder law attorney before you sign anything.
This guide explains general rules in plain language. It is not legal advice, and Florida Senior Support is not a law firm, financial advisor or insurance agency. For advice about your own situation, talk to a licensed professional.
Why People Want to Avoid Probate
Probate can take months. It is public, and it can cost money. Many families would rather skip it for a home. Our guide to the Florida probate process explains what happens and when it is needed.
Not every asset goes through probate. The Florida Bar explains that assets owned only in your own name usually do. Assets with a named beneficiary or held in a funded trust usually do not. You can read more in the Bar's Probate in Florida pamphlet.
What Is a Lady Bird Deed?
The formal name is an enhanced life estate deed. A regular life estate deed gives you the right to live in your home for life. It names someone, called the remainderman (the person who gets the home when you die). With a regular life estate, you usually need that person to agree before you sell.
A Lady Bird deed adds extra powers to you. You keep the right to sell, mortgage or change the plan without asking the people named in the deed. When you die, the home passes to them without probate. They usually record your death certificate and some paperwork in the county records.
Is It in the Florida Statutes?
No law creates the Lady Bird deed by name. It rests on long-standing property law and on guidance from the Florida Bar that title companies rely on. Because the deed has to be written the right way, a wrong word can turn it into a regular life estate. This is one reason people have an attorney prepare it.
What Is a Revocable Living Trust?
A revocable living trust is a written agreement you create while you are alive. You move assets into it, and you can usually be your own trustee (the person who manages the trust). You can change or cancel it while you have capacity. Florida's Trust Code is Chapter 736 of the Florida Statutes.
If you become unable to manage money, your chosen successor trustee can step in. That may help you avoid a court-appointed guardian for the assets in the trust. The Bar describes this in its Revocable Trust in Florida pamphlet.
Side by Side
| Question | Lady Bird deed | Revocable living trust |
|---|---|---|
| What it covers | One piece of real estate | Any asset you retitle into it |
| Control while you live | You keep full control of the home | You keep control as trustee |
| Avoids probate? | For the home, yes | For assets in the trust, yes |
| If you become incapacitated | Does not name anyone to manage the home | Successor trustee can manage trust assets |
| Setup | One deed, recorded in the county | Trust papers plus retitling each asset |
| Complex wishes (staged gifts, special needs) | Limited | Much more flexible |
| Lifetime creditors | Ask your attorney | Creditors can generally reach trust property |
Costs vary by lawyer and county, so ask for a written quote before you hire anyone. The Bar notes that a trust can still need paperwork, fees and valuation after death, so the savings may be smaller than people expect.
Homestead Exemption and Property Taxes
Florida's homestead exemption lowers the property tax on your main home. Many people worry that a new deed or trust will cost them that break. The Florida Attorney General has said that a person who holds a life estate can qualify (see AGO 2005-52). A trust can qualify too, but counties may ask to see the trust and may want certain wording in it.
Before you record anything, call your county property appraiser and ask what they need. Our guide to Florida property tax exemptions for seniors lists the basics. Homestead applications are due by March 1.
Medicaid: Be Careful Here
A claim you may see online is that a Lady Bird deed always protects a home from Medicaid. That is too simple. Here is what the law and official sources say.
- Estate recovery: After a Medicaid recipient who was 55 or older dies, the state can file a claim against that person's estate. Florida's law says this is done through the probate process under section 409.9101. Many Florida elder law attorneys read this to mean a home that passes outside probate is not part of that claim. That reading is common, but it is not guaranteed. Laws and agency rules can change.
- Built-in limits: The same law says the debt is not enforced if the person leaves a spouse, a child under 21, or a child who is blind or disabled. It also is not enforced against property that is exempt from creditors. Heirs can ask for a hardship waiver.
- The look-back: Giving away assets shortly before applying for nursing home Medicaid can cause a penalty. The look-back period is usually five years. Elder law attorneys generally treat a regular life estate deed differently from a Lady Bird deed, so how the deed is written matters. Ask your lawyer how your deed will be treated before you apply.
- Trusts: A revocable trust does not shield assets while you are alive. Medicaid usually counts them as yours.
Read our guide to Florida Medicaid long-term care for the basics on who qualifies. For your own home, get advice from a lawyer who handles Medicaid planning.
Common Mistakes
- Forgetting the homestead rules. The Florida Constitution limits who can receive a homestead (Article X, Section 4). If you are survived by a spouse or a minor child, you generally cannot leave your homestead by will or similar gift to someone else. The same law treats a trust gift of homestead as a devise (see section 732.4015). Many Florida real estate lawyers treat a Lady Bird deed as subject to this limit too. This is why many couples have the spouse sign on.
- Not funding the trust. A trust only controls what is retitled into it. If your deed or accounts still show your own name, those assets may still go through probate.
- Adding a child to the deed now. A joint owner can share the legal control, can be sued, and can run into trouble if they divorce or owe money. The Bar warns that joint ownership can cause more problems than it solves.
- Using a do-it-yourself form. One missing phrase can change what the deed does. This is why many families have a Florida attorney draft it.
- Skipping a back-up plan. A deed names who gets the home but not who pays bills if you are ill. Pair it with a power of attorney. See our public guardian guide for what can happen without one.
Questions to Raise With an Attorney
- Lady Bird deeds often come up when the home is the main asset and the owner's wishes are simple.
- Trusts often come up when there is more than one property, a wish for staged gifts, or a family member with special needs.
- Some people use both. Only an attorney who knows your family and finances can tell you what fits.
Steps to Get Started
- List your assets, including your home, bank accounts and any beneficiary forms.
- Write down who you want to receive the home, and who should help if you get sick.
- Note whether you have a spouse or children under 18.
- Meet with a Florida elder law or estate planning attorney. Bring your current deed.
- Ask how the plan affects your homestead exemption, Medicaid and title insurance.
- After signing, record the deed or retitle assets, and keep copies with your family.
- Review the plan after any move, marriage, divorce or death in the family.
Where to Get Free Help
- Florida Senior Legal Helpline: 1-888-895-7873. Free legal advice for Floridians 60 and older on civil matters. Income guidelines apply. Run by Bay Area Legal Services. See their page.
- Florida Bar Lawyer Referral Service: 1-800-342-8011. Can connect you to a local attorney.
- Elder Helpline: 1-800-96-ELDER (1-800-963-5337). Connects you to your local Area Agency on Aging.
- More options: Our free legal help guide lists legal aid groups by region. Also see financial planning for Florida seniors.
Disclaimer: This article is for informational purposes only and does not constitute medical, financial, or legal advice. Readers should consult a qualified healthcare provider for medical concerns, a financial advisor for financial planning, and an attorney for legal matters. The resources and programs mentioned are subject to eligibility requirements and availability, which may vary. While we strive for accuracy, the information provided may not reflect the most recent updates. Always verify details with official sources or professionals before making decisions based on this content.