Life estate deeds and enhanced life-estate deeds (a/k/a lady-bird deeds) are excellent estate planning tools and assist with avoiding probate. The lady-bird deed, in particular, is effective at avoiding Medicaid estate recovery (simply because it does such a good job of avoiding probate). Lady bird deeds have risks but that is a subject of another article (click the link to read more).
What is a life estate deed?
A life estate deed is simply a way to own property.Typically the real estate is first titled as “fee simple” by the owner. This is the strongest way for someone to own real property (they have full right to borrow with the property as collateral, sell the property, rent the property,etc…). In a life estate deed, the fee simple owner of the real estate essentially conveys the property to him or herself to live in for the rest of his or her life. In the same instrument, the owner becomes a “life-estate tenant” and indicates, in the deed, who is to get the house or condo after the life-estate tenant passes away (called the “remainder” or “remainderman”).
In a regular life estate deed there is an income tax allocation between the life estate tenant and the remainder. In addition, the life estate tenant has some limitation on how they are able to dispose of their own property because they have to obtain consent from the remainderman.
With an enhanced life estate deed / lady-bird deed, the life tenant has the ability to revoke or amend the remainder man designation at anytime while they are alive and specifically reserves the right to sell their property without the consent of those who may hold a remainder interest.
In both life estate or enhanced-life-estate deed scenarios, once a life estate tenant passes away, the person listed as “remainder” (i.e. the beneficiary) gets title to the real estate described in the recorded deed.
But, practically speaking, how does the remainder get the title transferred so the remainderman has full control and ownership of the real estate (with the ability to sell or borrow against the property)?
Your elder law attorney will ask that you obtain a certified copy of the short-form death certificate or your elder care lawyer can help do this for you.
How to obtain a Florida Death Certificate?
Typically the funeral director will assist with obtaining both long form and short form death certificates. However, certain people can order certified death certificates themselves (discussed further below).
Difference Between Long Form and Short Form Death Certificate
A long form death certificate includes “cause of death,” while a short-form death certificate does not.
Any person can obtain a death certificate without cause of death (short form).
Only the deceased person’s spouse, parent, child, grand child or sibling may request a long form death certificate (which includes the cause of death), or such person acting pursuant to a power of attorney, lawyer, or funeral director. In addition third parties who provide a valid last will and testament, insurance policy or other document that proves they are entitled to a long-form death certificate.
If you are recording a death certificate, Florida county clerks will only accept short-form death certificates.
Broward County Death Certificates
Certified copies of Broward county short form death certificates or long-form death certificates can be obtained in person (in Hollywood, Pompano Beach or Ft. Lauderdale). They will ask for the following death certificate application.
Miami-Dade County Death Certificates
Certified Miami-Dade County death certificates (short form and long-form) can be obtain by walking in (Hialeah, Miami, or Homestead) or calling 305-324-2400 or 866.830.1906. If walking in, they will ask for the following application for Florida death record.
Order Florida Death Certificates Online
The State of Florida Bureau of Vital Statistics has contracted with a company called VitalChek. To Order Florida Death Certificates Online, click the link. They charge $15.00 for certified long form or short form death certificates.
After the remainderman to the life estate deed sees an elder law attorney, the elder care attorney will ask for a certified copy of the short-form death certificate (without cause of death). Your elder care lawyer will then download a copy of the life estate deed to gather the legal description of the real property as recorded in the county official records. The elder care lawyer will then record a cover letter (indicating the legal description) along with the certified short form death certificate. After the cover letter and short form death certificate are recorded, by operation of law, the remainder interest will have title to the property - and will be able to convey, rent, or live in the subject real estate.