Among the many estate planning tools available in Florida is a legal mechanism known as a “Life Estate.” Its primary advantage is allowing you to transfer property to your beneficiaries upon death without going through probate.
Depending on the size and complexity of your estate, Florida probate proceedings may be a long, demanding, and expensive process, which makes a Life Estate well worth considering if you wish to help your loved ones avoid probate. Nevertheless, it is crucial to familiarize yourself with the process and consult with a Florida attorney to ensure that creating a Life Estate best suits your estate planning needs.
How Does a Life Estate Work in Florida? – An Explanation
In Florida, a life estate is an arrangement wherein the owner of a property can split its ownership between one or more “life tenants” (the life estate holders) and one or more “remaindermen” (the future interest holders).
A life tenant, or life estate holder, is someone to whom the owner grants the right to live in a property rent-free until their death. Under this agreement, life tenants must keep the property well-preserved and never destroy or damage the premises intentionally (which includes failing to preserve the property).
If the property generates income, such as a rental apartment, life tenants also have the right to that income while they are still living. Nonetheless, life tenants do not have full ownership rights, so they do not have the right to sell or transfer the property without the consent of the future interest the remaindermen.
A remainderman is the person who gains ownership of the property once the life tenant passes away. Accordingly, the remainderman can also occupy the property after the life tenant’s passing without having to go through probate.
Unlike life tenants, once their interests are fully vested (i.e., once the life tenant passes away) remaindermen can do what they wish with the property (e.g., sell, mortgage, lease, rent, or even gift it).
Should I Create a Life Estate in Florida?
Property owners in Florida typically create a Life Estate in order to still remain in their residential properties for the rest of their lives while ensuring their loved ones can receive the property once they pass.
The remainderman cannot occupy the property until the death of the life tenant (unless the life tenant gives permission). Once the life tenant passes, the remainderman has full rights of possession, occupancy, and control.
Thus, a Life Estate creates a unique type of joint ownership. An illustrative and common example is parents using this arrangement to remain in their homes while they are still living, but having their home go to their children instantly upon their death.
Bear in mind that while remaindermen cannot occupy a property during the lifetime of the life tenant (unless the life tenant gives permission), they must still work with the life tenant in decision-making regarding the property, such as selling the property, taking out a mortgage using the property, and other big decisions.
Additionally, if the life tenant of the property changes their mind and decides to revoke the life estate, they will need the consent of all remaindermen.
In light of the restrictions of this type of deed on the life tenant, Florida also has what’s called an Enhanced Life Estate Deed, or “Lady Bird” Deed, that gives the life tenant a lot more control over the property while they are still living.
The Enhanced Life Estate Deed (a/k/a “Lady Bird” Deed)
Just like with a regular Life Estate Deed, a “Lady Bird” Deed allows the life estate holder to live and occupy the property while they are still living but have the real estate go to their beneficiaries upon death without the need for probate.
However, the “Lady Bird” Deed has the added benefit of allowing the life estate holder to have full control of the property until their date of death. This control allows the life tenant to rent, mortgage, or even sell the real property (and keep the full sale proceeds) without needing the consent of the remaindermen. Give the flexibility and control that this type of deed affords, a “Lady Bird” Deed is often the more common type of Life Estate Deed that is created in Florida.
Is a Florida Life Estate Right for You?
Florida law allows individuals to use a wide array of estate planning tools, but it is important to consult with a real estate and estate planning attorney to determine which options best fit your needs.
Determining whether a life estate is an ideal option for your case requires a review of your estate planning goals. You must be careful in selecting your remaindermen and plan ahead with respect to your intentions with the property.
Our attorneys will take time to review your circumstances and understand both you and your estate in order to provide informed advice for your situation. Please call us at (800) 604-1871 or email us at Info@JFRealEstateLaw.com for a free consultation on Life Estate Deeds and our other estate planning and real estate services. We offer estate planning, real estate, and probate services throughout the State of Florida.