Florida Estate Planning Lawyer Blog

Florida DR-219 Form is Repealed as of 06/1/2008

Beginning June 1, 2008:

•The requirement to complete and file Form DR-219 is repealed. •The Department of Revenue will not process DR-219 forms received. •Destroy all blank DR-219 forms in your inventory.

The repeal of the requirement to complete and file Form DR-219 does not impact documentary stamp tax payment and filing requirements. Documentary stamp tax continues to be due on all documents that convey an interest in Florida real property. The tax must be paid at the time of recording with the Clerks of Court or County Recorders if the document is recorded prior to the 20th day of the month following the month the document is delivered. The tax must be paid directly to the Department of Revenue by the 20th day of the month following the month the document is delivered if the document is not recorded before. Delinquent payment of tax will continue to be subject to penalty and interest charges.

The Florida Supreme court has ruled affirmatively on the question presented to it.

Whether, under Florida Statutes section 689.07(1) as it existed before
its 2004 amendment, this Deed––which is a recorded real estate
conveyance deed to a named trustee of a private express trust
identified in the deed by name and date, and contains other language
referring to the unrecorded trust agreement, the settlors, and the
beneficiaries––conveys only legal title to the property in trust to the
grantee as trustee.

In Raborn v. Menotte, 974 So. 2d 328 (Fla. 2008), the court held that a deed which identifies the grantor as the creator of and the grantee as trustee of a named trust shows sufficient “contrary intention” and grants legal title as trustee to the grantee.

This case was brought to my attention by an article by Gerry Beyer on the WIlls, Trust, & Estates professors Blog.

Where can I get a Form for Florida Lady Bird Deed is a question that I am often asked. Florida Lady Bird Deeds are generally not available on the Internet because not many Florida Lawyers even know what they are. They are also far more complex than a regular deed.

I have seen several cases where clients used Ladybird deed that were not acceptable to Title insurance companies and the families had to open probate cases to clear the title on the property after the death of the grantor.

Because of this when we created our deeds we went to many title companies to get their feedback and modified our deed and they way they are filed to be in compliance with the title companies requirements.

In addition the language that is used on the remainder interest is very important because it is possible that the person named might not survive the original owner. If the wrong language is used, the property will revert back to the original owners estate and could potentially be subject to the claims of the creditors and Medicaid liens.

If you need a Ladybird deed in Florida, you should Contact a Florida Estate Planning Lawyer who is familiar with Ladybird deeds.

A *Florida Enhanced Life Estate Deed or Florida LadyBird Deed is designed to pass the property if any to a person upon the death of the life tenant while allowing the life tenant to do anything during their life.

What happens if the person named in the remainder interest predeceases the life tenant?
This is
From A to B for life (with enhanced powers) remainder to C.
If C dies before B, and then B dies the property will revert to A or A's Estate upon B's Death.

This can be problematic when claims are potential claims against A's estate.

Solutions:
1) When C dies, B should change the Enhanced Life Estate Deed
2) create the deed in such a way that the language of the deed specifies that the property does not go back to A or A's heirs

If you need a Florida Enhanced Life Estate Deed or Florida LadyBird Deed Contact a Florida Estate Planning Lawyer to create a deed that serves your needs and minimizes your risks.

In Florida, the Life tenant is generally responsible for the costs of repairs, but the remaindermen are responsible for the payments for improvements to the property.

If the life tenant paid for the costs of improvements on a property, this would constitute an uncompensated transfer or gift which could result in a period of ineligibility for Medicaid.

If repairs are being done on the property, it is important to have he contractor and suppliers specify that everything is begin done as a repair to avoid the possibility of the DCF worker classifying it as an improvement and creating a gift.

Before making repairs on a life estate, you should make sure that the act will not disqualify your family member from coverage. Please Contact a Florida Elder Law Lawyer to discuss your situation.

All Florida Enhanced Life Estate Deed or Florida LadyBird Deed are not created Equal.
In the past, I have had clients come to me for help when a title company would not accept the language on an Florida Enhanced Life Estate Deed or Florida LadyBird Deed. Each title company has specific language that they look for in the deed. As as result we have had several title companies review our deeds and make recommendations. We took these and complied them into a single form that satisfied all of their requirements.

If the title company is not happy with your current deed, they can refuse to write title insurance. As title insurance is required by every commercial lender in Florida when a home is sold, this can create a problem when you want to sell your home. In some cases, we have had to open or reopen a probate case to get the judge to issue an order to clear up the title concerns.

Often these deeds are used to avoid the delays and expenses of Florida Probate, not create ineligibility periods for medicaid, allow for stepped up basis, and not create unnecessary gift tax. If you would like to create an Florida Enhanced Life Estate Deed or Florida LadyBird Deed or have your deed reviewed please Contact a Florida Estate Planning Lawyer.

As the Percentage of Florida Millionaires continues to rise, the need for more complex Florida Estate Planning continues to increase.

When ones assets are significant the benefits of a Florida Revocable Trust in conjunction with a Florida Will are increased. Florida's probate fees can rapidly approach 30,000 dollars on some of these estates. These fees can be greatly reduced or eliminated with proper planning. Even Florida residents who have a Florida Revocable Trust may need some additional documents to avoid probate. One such document that Florida's millionaires might consider is the Florida Enhanced Life Estate Deed or Florida LadyBird Deed .

To discuss what steps you family can take to reduce your estate taxes and probate fees, Contact a Florida Estate Planning Lawyer to discuss your situation.

Professor Gerry W. Beyer author of the Wills, Trusts, & Estates Professors Blog, as reported on a mistake in estate planning where a "Do it Yourself" Estate Plan Backfires. In this case a mother who did not hire her own estate planning lawyer made a number a big mistake that ended up causing problems withe Medicaid eligibility.

The mother, a widow, was worth 500K. Her home is worth 400K and has 4 children. After her daughter and son-in-law declared bankruptcy and moved in with her, they suggest buying her home. Unfortunately the home was not transfered at fair market value, and the mother made part of the purchase a gift. Mom ended up not having assets to split between the children like she had intended, and if she needs to qualify for medicaid within 5 years she will be disqualified.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?
Do it yourself Estate Planning: Bad News Part 3

A common mistake found in Florida Probate cases, is where Florida homestead, property that is exempt from probate, is changed to real property and subject to claims of creditors and not exempt from probate.

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed") is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process.

Why Use an Enhanced Life Estate Deed?
The Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Who should use the Enhanced Life Estate Deed?
An Enhanced Life Estate Deed or Lady-Bird Deed should be use by individuals or couples who want to simplify the transfer of their property upon their death and retain full authority and possession over their property.

Will using an Enhanced Life Estate Deed affect my Medicaid Eligibility?
As long as the individuals demonstrate an "intent-to-return" to the homestead Medicaid Eligibility should not be affected.

What are some common mistakes with deeds?
Many Florida residents add their children on their deeds as Joint Tenants with Rights of Survivorship.
Many Florida Residents deed their property to their children and retain a life estate.

What can happen if I have made a common mistake on my deed?
1) My home may not be protected from creditors and/or loose its homestead protection.
2) I may be disqualified from Medicaid in the event that I need to go into a Nursing home.
3) I may have made a gift, subject to Federal Gift Taxes, Penalties, and Interest which my heirs and/or family may be responsible for paying.
4) I may not be able to sell my home or use the proceeds from my home to enhance my quality of life, travel, or pay for the necessary medical care I need.

If I have made a mistake transferring my property, can it be fixed?
Yes, You should meet with a Florida Estate Planning Lawyer to evaluate your situation, and prepare the documents necessary to allow you to qualify for Medicaid, deal with the Gift taxes, protect your homestead, and pass your homestead to the desired beneficiaries without the costly expense and delay of Florida probate.

Florida Estate Planning Lawyers and Florida Elder Law Lawyers often use Ladybird Deeds to help transfer property upon death while allowing the owner to retain the full rights to sell, mortgage, convey, or change the future owner.

Florida, Texas, Ohio, California, Kansas and several other states now allow aLadybird Deed (named after Lady Bird Johnson) or Enhanced Life Estate Deed. With an enhanced life estate deed, a person can deed their property to another while reserving for themselves a life estate with the right to sell, convey, mortgage, or change who the property will pass to upon their death.

Quitclaim Deed v. Lady Bird Deed (Enhanced Life Estate Deed)
Often people use a Quitclaim Deeds to avoid probate. A Quitclaim Deed use to make things easier for beneficiaries. The problem with the Quitclaim Deed to avoid probate is that owner would not be able to sell or mortgage his/her property without the consent of her beneficiaries.

In some states a life estate or quitclaim deed could invalidate your homestead protection. If you are elderly or wanting to reduce potential probate costs it is important to speak to attorney in your state, who is practices in Elder law and Estate planning.

Florida residents or those owning property in Florida who have questions about how a recent or future deed transfer might affect them or their family can use the contact form to ask questions.

Jacksonville Estate Planning Law Firm Wood, Atter & Associates, P.A. will continue it community service project by adding 3 Living Will Seminars in the month of September. This program provides Free information and the chance to create a free Florida Living Wills, Florida Designation of Health care Surrogate, and a Hipaa Release.

On September 11, 2007 at 11 A.M.
Riverview Center
Attn Ms Annie Henderson
9620 Water Street
Jacksonville, Florida 32208
(904) 765-7511

On September 18, 2007 at 11 A.M.
Wallace Small Center
Attn: Ms. Gloria Gregg
1083 Line Street
Jacksonville, Florida 32209
(904) 630-0724

On September 26, 2007 at 11 A.M.
Longbranch Center
Attn: Ms. Margaret Hampton
4110 Franklin Street
Jacksonville, Florida 32206
(904) 630-0893