In Florida, life estate deeds are estate planning tools that allow individuals to own and live in a property while they are still living while giving a future interest to their beneficiaries (who avoid the probate process upon the owner’s death). However, what happens if the person creating the life estate changes his or her mind about the arrangement?
What is a Life Estate in Florida? – Understanding the Concept
A life estate is a legal arrangement in which the owner of the property splits ownership between one or more life estate holders (also called “life tenants”) and one or more future interest holders (who are called the “remaindermen” or “remainder interests”). A “life tenant” is not to be confused with a tenant who rents a property – a life tenant is an actual form of property ownership.
A life estate holder is the person whom the owner grants the right to live in the property up until that individual’s passing, whereas the remainderman is the person who takes ownership and control of the property automatically upon the owner’s death.
Typically, owners use life estate deeds to appoint themselves as life tenants so that they can still have the rights of use and possession while they are still living. The life estate holder has a duty to maintain the property and pay for the regular expenses that arise (taxes, insurance, etc.). Additionally, the life estate deed gives the life estate holder the right to any income generated by the property.
Florida has two types of life estate deeds – the standard life estate deed (or regular life estate deed) and the enhanced life estate deed (also known as the “Lady Bird” Deed). With a standard life estate deed, the life estate holder has the right to live in and use the property while they are still living, but no right to sell, transfer, mortgage, or lease the property without the consent of the remaindermen.
With a Lady Bird Deed, the life estate holder has the full right to sell, transfer, lease, or mortgage the property and does not need anyone’s consent in order to do so. (For more information about the pros and cons of Lady Bird deeds, click here.).
With both types of life estate deeds, the remainderman has a future ownership interest in the property and cannot occupy the premises until the life estate holder’s death (unless the life estate holder gives permission to do so). Upon the life estate holder’s death, the remainderman is granted full ownership of the property, and has the right to sell, mortgage, lease, rent, gift, or pass the property to his or her own beneficiaries.
How Do You Dissolve or Change a Life Estate in Florida?
A common scenario for a life estate is parents making themselves the life estate holders while their adult children are the remaindermen. In this scenario, the parents can continue living in their home while ensuring that their children will eventually get the property without having to go through the probate process.
This is because Florida probate rules apply to assets that are titled in the decedent’s name upon their death; since a life estate automatically results in the remainderman becoming the owner of the property when the life estate holder passes, the subject property does not have to go through probate.
Of course, a lot can happen in the years or decades following the execution of a life estate deed. With a standard life estate deed, if circumstances change, the property’s original owner—who, again, is often also the life estate holder or life tenant—can reverse or change the life estate deed only with the approval of the remainderman. Hence, if one or all of the remaindermen refuses to sign the new deed or asks for compensation to do so, changing the life estate may become a herculean task.
However, with an enhanced life estate deed (or “Lady Bird” Deed), the approval of the remaindermen is not needed and the life estate holder is free to cancel, reverse, or change the life estate at his or her own will.
Either way, both circumstances involve drafting a new deed, which should be done with the assistance of a Florida licensed attorney.
How Farshchian Law Can Help
In summary, a standard life estate deed creates a type of joint ownership in which life tenants depend on the remaindermen for decision making. Hence, if the life tenant changes his or her mind and decides to dissolve or change the legal arrangement, they must rely on the goodwill of the remainderman, which can always change depending on the circumstances. In contrast, a Lady Bird Deed offers a greater level of freedom to the life estate holder, resulting in it often being the preferred life estate deed in Florida.
As Florida has very specific formalities for deed transfers, it is crucial to consult with an experienced Florida real estate and estate planning attorney. At Farshchian Law, we can assist you with drafting a life estate deed and any of your other estate planning needs. Please call us at (800) 604-1871 or email us at Info@JFRealEstateLaw.com for a free consultation.