Transfer-on-Death Deed

TRANSFER-ON-DEATH DEED — NOT AVAILABLE IN FLORIDA

Table of Contents

1. Important Notice
2. Current Florida Law
3. Alternative Non-Probate Transfer Methods
4. Enhanced Life Estate Deed (Lady Bird Deed)
5. Revocable Living Trust
6. Joint Tenancy with Right of Survivorship
7. Tenancy by the Entirety
8. Florida Homestead Considerations
9. Comparison of Alternatives
10. Pending Legislation
11. Sources and References

1. Important Notice

Florida does not authorize transfer-on-death (TOD) deeds for real property. Florida has not adopted the Uniform Real Property Transfer on Death Act (URPTODA) or any equivalent statute. Real property owners in Florida cannot use a recorded deed to designate a beneficiary who will automatically receive the property upon death outside of probate.

2. Current Florida Law

Florida law does not recognize any deed instrument that automatically transfers real property upon the owner's death without probate or a trust. Real property in Florida must pass through:

• Probate — through a valid last will and testament or intestate succession
• Non-probate ownership structures — joint tenancy with right of survivorship, tenancy by the entirety
• Trust-based transfers — property held in a revocable living trust
• Enhanced life estate deed — Lady Bird deed (widely used in Florida)

3. Alternative Non-Probate Transfer Methods

*Requires consent of all owners to sever or change.

4. Enhanced Life Estate Deed (Lady Bird Deed)

The enhanced life estate deed (commonly called a "Lady Bird deed") is the most functionally similar alternative to a TOD deed available in Florida and is widely used by Florida practitioners.

Key Features:

• Owner retains a life estate with enhanced powers (right to sell, mortgage, lease, or revoke without remainder beneficiary's consent)
• Remainder interest passes automatically to named beneficiary(ies) upon death
• Avoids probate — no court proceeding required
• Owner retains full control during lifetime
• Generally does not trigger Medicaid disqualification or constitute a disqualifying transfer

Requirements:
☐ Deed must be properly drafted with enhanced life estate language
☐ Deed must be recorded in the official records of the county where the property is located
☐ Owner must have legal capacity to execute a deed
☐ Must comply with Florida deed execution requirements (Fla. Stat. § 689.01): signed in the presence of two witnesses and acknowledged before a notary public

Revocation:
☐ Owner may revoke the Lady Bird deed by recording a new deed conveying the property to themselves or another party
☐ Owner may sell or mortgage the property without the remainder beneficiary's consent

5. Revocable Living Trust

Key Features:

• Grantor retains full control as trustee during lifetime
• Fully revocable and amendable
• Property must be re-titled in the name of the trust
• Successor trustee distributes property upon grantor's death without probate
• Provides incapacity planning as well as death transfer

Requirements:
☐ Trust agreement drafted and executed
☐ Deed transferring property to the trust recorded in the county where the property is located
☐ Deed into trust must comply with Fla. Stat. § 689.01 (two witnesses, notarization)
☐ Documentary stamp tax may apply on the deed into trust if consideration is paid

6. Joint Tenancy with Right of Survivorship

Key Features:

• Property automatically passes to surviving joint tenant(s) upon death
• No probate required
• Must be expressly created with right of survivorship language (Fla. Stat. § 689.15)

Cautions:

• Adding a joint tenant is a present gift of an interest
• Exposes property to the co-owner's creditors
• Cannot be revoked unilaterally
• May have gift tax consequences

7. Tenancy by the Entirety

Key Features:

• Available only to married couples in Florida
• Automatic right of survivorship upon first spouse's death
• Provides significant creditor protection — property held as tenants by the entirety cannot be reached by creditors of only one spouse

Requirements:
☐ Owners must be legally married at the time of conveyance
☐ Deed must be properly recorded

8. Florida Homestead Considerations

Florida has some of the strongest homestead protections in the nation. These protections significantly affect real property transfers:

Constitutional Homestead Restrictions (Art. X, § 4, Fla. Const.)

• A homestead cannot be devised if the owner is survived by a spouse or minor child, except:
• To the surviving spouse, or
• If the surviving spouse waives homestead rights
• These restrictions apply regardless of the transfer method used

Homestead Creditor Protection

• Homestead property is protected from forced sale by creditors (with limited exceptions for property taxes, mortgages, and mechanic's liens)
• This protection continues for the surviving spouse and heirs

Impact on Transfer Planning

☐ Lady Bird deeds — must comply with homestead restrictions; spousal joinder required if owner is married
☐ Revocable trusts — property in trust may lose homestead protection; careful drafting required
☐ Joint tenancy — spousal homestead rights should be confirmed before adding non-spouse owners

9. Comparison of Alternatives

For clients who would have used a TOD deed, consider:

10. Pending Legislation

As of the date of this template, there is no pending legislation in Florida to adopt the Uniform Real Property Transfer on Death Act or to authorize TOD deeds for real property. The availability of the Lady Bird deed as a well-established alternative may reduce legislative interest in enacting TOD deed legislation.

11. Sources and References

• Fla. Stat. § 689.01 — Conveyances of Land; Execution Requirements
• Fla. Stat. § 689.15 — Estate by Entirety; Joint Tenancy
• Fla. Stat. Ch. 711 — Uniform Transfer on Death Security Registration Act (securities only)
• Fla. Stat. Ch. 732 — Probate Code; Intestate Succession and Wills
• Art. X, § 4, Fla. Const. — Homestead; Exemptions
• Uniform Real Property Transfer on Death Act (not adopted in Florida)
• Florida Department of Children and Families — Medicaid Policy on Enhanced Life Estate Deeds

This document is provided for informational purposes only and does not constitute legal advice. Florida does not authorize transfer-on-death deeds for real property. Consult a licensed Florida attorney for guidance on non-probate transfer strategies.