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Heirs property generally refers to family-owned property inherited by multiple generations without formal legal proceedings, resulting in a lack of clear title proving ownership. As explained in a 2018 Florida Bar Journal article entitled The Disproportionate Impact of Heirs Property in Florida’s Low-Income Communities of Color, these arrangements can lead to all sorts of negative consequences for family wealth creation. In response, in 2020 Florida adopted the Uniform Partition of Heirs Property Act (F.S. Ch. 64, Part II), which was hailed by housing advocates as an important and necessary step in closing the “racial wealth gap.”

Following that legislative reform the challenges faced by families with heirs property continues to garner much needed attention, including from national corporate actors like Wells Fargo. As recently reported by the Miami Herald in Heirs to Black-owned homes face ramped-up foreclosures. Here’s who’s pushing back:

In April, Legal Services of Greater Miami received a $600,000 grant from the Wells Fargo Foundation, which will partly be used to brief Miami-Dade residents about the issue and provide free legal assistance to heirs’ property owners in untangling titles, building on the organization’s work so far in Liberty City funded by Bank United.

Legal Services has fielded approximately 30 requests for help with potential heirs’ property matters.

“At a time like now, where affordable housing is becoming scarcer and scarcer, keeping a family home that you’ve had for decades is perhaps one of the most affordable ways to stay housed,” said the organization’s advocacy director, Lisa Lauck.

What’s the fix? Think Lady Bird Deeds

One of the primary causes of heirs property is a lack of basic estate planning. So not surprisingly, there’s a big push to get more property owners to engage in that kind of planning. For example, under the USDA’s loan program designed especially for heirs property you can’t qualify for one of these farm loans unless you first complete a “succession plan”.

The most commonly suggested solution for this lack of planning is a will. That may work if you’re focusing on farms and ranches but it’s clearly not the best option for the vast majority of Floridians, whose most common form of heirs property is going to be a single family home. All of the heirs-property examples reported on in the Miami Herald article involved single family homes. Most (probably all) of these families would be better served by “Lady Bird Deeds”.

Lady Bird Deeds (also referred to as “enhanced life estate deeds”) are ideally suited for the single most valuable asset most people own when they die: their home. Why? Because these deeds offer a simple, inexpensive way to transfer real estate at death without the costs and delays of probate (vs. a will, which has no legal effect unless it’s probated). And in another contrast to wills, Lady Bird Deeds should be publicly recorded as soon as they’re signed (there’s no mechanism in Florida for publicly recording wills prior to the testator’s death). So there’s no risk of the deed getting lost or misappropriated years later. (A lost will is an invitation for litigation.)

If you’re a practitioner and want to dive into the weeds on the technicalities of these deeds, a good starting place is Lady Bird Deed: An Inexpensive Probate Avoidance Technique. And if you’re looking for a plain English summary of why these deeds are so popular as well as a chart showing the differences between Lady Bird Deeds and traditional life estate deeds, look no further than Giving the Bird. Lady-Bird Deeds:

And last but not least, thank you to Orlando real estate attorney Norman W. Nash, who reminded me of another great resource for practitioners preparing (or even just considering) lady bird deeds. It’s the Florida Uniform Title Standards published by the Real Property, Probate, and Trust Law Section of the Florida Bar. The following three title standards address lady bird deeds directly:

For more on the backstory to these title standards you’ll want to read Enhanced Life Estates Are Now Standard Practice. Here’s an excerpt:

The issue, as noted in the comments to all of the uniform title standards to be discussed in this article, is, “although Lady Bird Deeds are used prevalently in Florida for various purposes, there is no Florida Statute governing such conveyances and scant judicial authority supporting the practice.” Recognizing the lack of authority available, last year the Uniform Title Standards Committee of the Real Property, Probate and Trust Law Section of The Florida Bar approved three new title standards regarding enhanced life estates to “represent the consensus view of the Real Property, Probate, and Trust Law Section of The Florida Bar.” Each uniform title standard contains the title standard, examples of hypothetical fact patterns illustrating the application of the title standard, and commentary about the title standard.

Rohan Kelley doesn’t use Lady Bird Deeds

Rohan Kelley is Florida’s leading thought leader on all things homestead and author of the famous Kelley’s Homestead Paradigm. So when Rohan says he’s not a fan of Lady Bird Deeds, we all need to stop and listen. With Rohan’s permission I’ve quoted below an email he was kind enough to send me in response to this blog post. Here’s the bottom line for Rohan:

The clear intent of an enhanced life estate deed is as a will substitute.  At least to the extent the property is protected homestead, it simply doesn’t work even though the use of this will substitute nearly always involves homestead.

Rohan’s point is well taken … as far as it goes. If the subject property is your personal residence it’s also going to be “homestead” property that’s subject to the restrictions on devise contained in Article X, §4(c) of Florida’s constitution. And if you’re survived by a spouse or minor child and you invalidly devise your homestead property — be it by Will or Lady Bird Deed — that devise is going to fail. For an example of a failed devise of homestead property via a Lady Bird Deed, see Problem 2 of Florida Bar Title Standard 6.12.

On the other hand, if you’re not survived by a spouse or minor child or if you otherwise validly devise your homestead property — be it by Will or Lady Bird Deed — that devise is going to work. For multiple examples of successful devises of homestead property via a Lady Bird Deed, see Problems 1, 3 and 4 of Florida Bar Title Standard 6.12.

And that’s my point. If a devise of homestead property is subject to the same restrictions be it by Will or Lady Bird Deed, why not default in favor of the self-executing probate-avoidance benefits of a Lady Bird Deed? For example, in both family stories reported on in the Miami Herald article a devise of the subject homestead property via a Lady Bird Deed would have worked without the costs and delays of probate (vs. a will, which has no legal effect unless it’s probated).

But I’ve been doing this lawyering thing long enough to fully concede I could be wrong. Here’s the full text of Rohan’s thoughtful and scholarly comment (which I highly recommend):

I don’t use lady bird deeds because I’m concerned that they might be subject to challenge in some circumstances, especially if enough money were involved.  There is only one case in Florida that discussed what has become known as an enhanced life estate deed, Oglesby v. Lee, 73 Fla. 39, 73 So. 840 (Fla 1917).

The “remainder” interest created is an unvested interest, not as argued by some that it is a vested remainder subject to divestment.

In Oglesby, in dictum, the court stated “That such conveyance was in effect a will . . . .” (At page 41.)  The other fact in Oglesby that makes it inapplicable to the modern use of a lady bird deed is the fact that “[Grantor, who was also the remainderman’s father] was appointed guardian of [remainderman], then a minor, ‘to protect and preserve the consideration received from J. W. Oglesby for the land.’” Another relevant fact that distinguishes Oglesby is “. . . said land is wild, unimproved, and unoccupied except such occupancy as that of cutting timber therefrom.”  Hence it was not protected homestead.

This case has never been cited by any other Florida case.

Only one other Florida case involved an enhanced life estate.  Agee v. Brown, 73 So.3d 882 (Fla 4th DCA 2011). That case involved the issue of whether a lawyer who prepared an earlier will for a client that included himself and his wife as beneficiaries, and was alternate personal representative of the earlier will, was an interested person who could challenge the later will.   Judge Speiser held that because the lawyer was presumed to have exerted undue influence thereby rendering the will he prepared void, he had no interests under which he could contest the later will.  The 4th DCA reversed.  However, the validity or effect of the enhanced life estate was not an issue in the case.

The other consideration is Title Standard 6.12 Problem 2, that states:



Problem 1: A remainder in Blackacre was conveyed by John Doe, a single man, to Jane Smith with John Doe reserving for himself without any liability for waste, full power and authority in himself to sell convey, mortgage or otherwise manage and dispose of the property in fee simple with or without consideration, without joinder of the remainderman, and full power and authority to retain any and all proceeds generated by such action. John Doe died without a spouse or a minor child. Upon the death of John Doe, is fee simple title vested in Jane Smith? Answer: Yes.

Problem 2: Same facts as in Problem 1, except that John Doe died while married to Sally Brown. Upon the death of John Doe, is fee simple title vested in Jane Smith? Answer: No.

According to the Title Standard, an enhanced life estate deed doesn’t work where the grantor is survived by a spouse of minor child.  See Art. X s. 4(c) Fla. Const.

You will recall the case In re Johnson’s Estate, 397 So.2d 970 (4th DCA 1981):

“By retention of the complete control of the property with the absolute right to revoke [the enhanced life estate deed], it is apparent that the testator intended to circumvent the constitutional restriction on testamentary disposition of the homestead while at the same time treating the property as his own during his lifetime. Any statutory basis for permitting said transaction would abrogate the constitutional protection accorded to a homestead as provided in Article X, Section 4 of the Constitution of the State of Florida, which must prevail over any statutory enactment.” (At page 971) (“enhanced life estate deed” substituted for “trust instrument”)

“That which the law forbids to be done directly cannot lawfully be done by indirection.  If an attempted conveyance of homestead real estate is in legal and practical effect and operation a will, it may not be effective when the owner of the homestead leaves a wife or child.” (At page 972)

The clear intent of an enhanced life estate deed is as a will substitute.  At least to the extent the property is protected homestead, it simply doesn’t work even though the use of this will substitute nearly always involves homestead.

In summary, what we have in widespread use by Florida lawyers is an untested device that is widely misused.  The justification for why it is used is because everybody uses it.  What if everybody is wrong?

I subsequently asked Rohan for clarification based on my thoughts above, and he kindly agreed. Rohan’s point is that there is a lack of clear legal authority for these deeds, especially as applied to homestead property. Statutory authority explicitly validating these deeds would clear up any doubt on that front, as advocated in Transfer on Death Deeds: It Is Time to Establish the Rules of the Game. In the absence of explicit statutory authority the best we have are the Florida Bar’s title standards listed above (6.10, 6.11, and 6.12), all of which confirm the validity of Lady Bird Deeds. Against this backdrop here’s the full text of Rohan’s follow up comment, which I again highly recommend:

Your point is if decedent’s homestead is not protected homestead (as defined in s. 731.201(33), why not use a lady bird deed. It would appear from the Title Standards that is an acceptable procedure.

I believe Jerry Solkoff, Esq. is generally credited with having “invented” the lady bird deed, similar to Norman Dacey having “invented” the revocable living trust.

My concern with the validity of a lady bird deed, whether or not involving unprotected homestead, is two-fold.

First, as I alluded in my earlier e-mail, only one Florida case has ever involved the procedure known as an enhanced life estate deed and the facts were significantly different from the ordinary usage of that procedure. What has evolved is literally hundreds of thousands of documents involving real estate probably worth many billions of dollars that has no basis in Florida case law or statutes.

My usual reaction to a lawyer who makes a statement regarding existing law is to ask “what is your authority” and the answer in this instance is “none.”

My second concern relates to the fact that such a deed is a “will substitute.” 736.0403(2)(b) fla.Stat. provides in part:

“The testamentary aspects of a revocable trust, executed by a settlor who is a domiciliary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state.”

If I walks like a will and quacks like a will, it must conform to the statute of wills. The formalities for execution are different for execution of a will than they are for execution of a deed. Compare 732.502 Fla.Stat with 689.01 Fla.Stat.

Hence, in my opinion, it is uncertain whether an enhanced life estate deed “works” even for non-homestead real property. You might say “Well, just execute lady bird deeds with the formalities required for the execution of a will in this state.” There seems a lot of uncertainty there as well. Can a document that professes to be and states that it is a deed, then be construed as a will, regardless of the formalities of its execution.

My view is that there are just too many uncertainties with an enhanced life estate deed to make it a viable option.

If I’m preparing a document for a client that I’m not sure is valid to accomplish its intended purpose, as a lawyer I think I have the professional responsibility to so advise the client. I am certain that NEVER happens.

I’m certain that I stand among less than 1% of lawyers on this point.