Should You Use a Lady Bird Deed or a Trust in Florida?

Should You Use a Lady Bird Deed or a Trust in Florida?

By Jacqueline R. Bowden Gold, Broward Estate Planning Attorney

When planning your estate in Florida, you may have heard about Lady Bird Deeds (Enhanced Life Estate Deeds) and Revocable Living Trusts as tools to transfer property while avoiding probate. But which is the better option for your situation? This guide will compare both, explaining their benefits, drawbacks, and key considerations.

What is a Lady Bird Deed?

A Lady Bird Deed, also known as an Enhanced Life Estate Deed, allows a property owner to retain full control of their property during their lifetime while automatically transferring ownership to designated beneficiaries upon death—without going through probate.

Advantages of a Lady Bird Deed

✔ Avoids Probate – The property passes directly to the beneficiary upon death.

✔ Maintains Control – The grantor can sell, mortgage, or change the deed without beneficiary consent.

✔ Medicaid Asset Protection – The property is not counted as a Medicaid asset for estate recovery.

✔ Tax Benefits – Beneficiaries may receive a step-up in basis, reducing capital gains taxes.

✔ Cost-Effective – Typically cheaper to set up than a trust.

Disadvantages of a Lady Bird Deed

✖ Limited to Real Estate – Only transfers real estate, not other assets.

✖ No Asset Protection for Beneficiaries – If the beneficiary has debts or legal issues, creditors can claim the property (once their rights are vested).

✖ Not Ideal for Complex Estates – Does not cover other estate planning needs like incapacity planning or wealth distribution.

✖ Requires Separate Documents for Incapacity  – The remainder interest does not have any rights to act on property. Therefore, in the event of incapacity, you would want to make sure you have a Durable Power of Attorney.

✖ No Multiple Layers of Succession  – You cannot name additional beneficiaries if the person predeceases you. You would have to pay to have a new deed prepared and recorded.

✖ Deed becomes a public record  – Not ideal if you don’t want the public records to reflect who you are naming as beneficiary.

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What is a Revocable Living Trust?

A Revocable Living Trust is a legal entity that holds assets, including real estate, for beneficiaries. The grantor maintains control of the trust and can amend or revoke it at any time.

Advantages of a Revocable Living Trust

✔ Avoids Probate – Just like a Lady Bird Deed, a trust ensures assets transfer outside of probate.

✔ Manages Multiple Assets – Can hold various types of property, including bank accounts, investments, and business interests.

✔ Protects Beneficiaries – Assets can be distributed over time to prevent irresponsible spending.

✔ Incapacity Planning– If the grantor becomes incapacitated, a successor trustee can manage assets without court intervention.

✔ Tax Benefits – Beneficiaries may receive a step-up in basis, reducing capital gains taxes.

✔ Privacy Protection – Unlike wills, trusts are not public records, keeping financial affairs private.

Disadvantages of a Revocable Living Trust

✖ Higher Initial Cost – Creating and funding a trust is more expensive than a Lady Bird Deed.

✖ More Administrative Work – Requires ongoing management, such as re-titling assets into the trust.

✖ No Medicaid Protection – Unlike Lady Bird Deeds, trust assets may be subject to Medicaid estate recovery (but can provide Medicaid protection for residuary beneficiaries upon your passing).

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Lady Bird Deed vs. Trust: Which One Should You Choose?

Factor	Lady Bird Deed	Revocable Living Trust
Avoids Probate?	✅ Yes	✅ Yes
Covers More Than Real Estate?	❌ No	✅ Yes
Allows Full Control?	✅ Yes	✅ Yes (for the grantor)
Provides Beneficiary Asset Protection?	❌ No	✅ Yes
Ideal for Medicaid Planning?	✅ Yes	❌ No
Privacy Protection?	❌ No	✅ Yes
Step Up in Basis for Beneficiaries?	✅ Yes	✅ Yes
Cost?	💲 Lower	💲💲 Higher

 

Can You Use Both?

Yes! Many estate plans combine a Lady Bird Deed and a Revocable Trust—

• Use a Lady Bird Deed for your homestead to avoid probate and preserve Medicaid eligibility. You can also name your Trust as the remainder interest on the Life Estate deed.
• Use a Revocable Trust for other assets like bank accounts, investments, and personal property.

 

Final Thoughts

Both a Lady Bird Deed and a Trust are powerful estate planning tools, but the best choice depends on your goals. Consulting with a Florida Estate Planning attorney can help ensure your estate plan aligns with your needs.

Need Help? Contact an experienced Florida Estate Planning attorney to discuss your estate planning options. This article is intended for informational purposes only. It is important you consult with an experienced probate attorney. For more information contact attorney Jacqueline R. Bowden Gold at (305) 556-5209 or by email at JBowden@raricklaw.com.