Pros and Pitfalls of a Ladybird Estate
The Ladybird Estate got its delightful name after the late wife of President Lyndon B. Johnson, Ladybird Johnson. Her real name was Claudia Alta, and her late husband’s bequest of their homestead set the stage for the nickname of an estate planning document also dubbed the “Life Estate.” But what exactly is a life estate, and should you be using one to avoid probate?
What is a Life Estate?
Whenever someone deeds a property to another, they can do so in several ways. First, they can opt to grant the receiver everything – the whole package, so to speak. This is what we call a warranty deed. It comes with all rights and responsibilities, usually any potential mineral rights, and full right to use the property, take out loans, or otherwise mortgage it. Second, one can grant just a quitclaim deed, which confers basic rights, but comes with no promises about the condition of the property. It also can have exceptions and limitations, and is often used in as-is sales transactions. Finally, one can grant the receiving party less than a full estate. This can sometimes mean a life estate, which works like this.
A person (usually a spouse) leaves a deed to property that says the property is to remain in the exclusive control of the surviving spouse, to be used solely for their benefit, and they are to be allowed to keep that property and reside in it as long as able and alive. However, upon the surviving spouse’s passing (or sometimes admission to a nursing home), the property then passes to someone else who receives the remainder of the whole estate. That person then owns it free and clear.
Why Use a Life Estate
A life estate allows an aging or ill spouse to ensure that the surviving widow or widower will have a place to live for the rest of their natural life. However, it also allows the owner to ensure that someone else gets the whole thing, including all benefits and equity, upon the spouse’s death. This is typically seen when a person wants to leave the value of a property to his or her adult children (usually by a prior marriage), yet wants to provide for the surviving spouse during life.
While the benefits are clear – it avoids probate, preserves the property for heirs, and provides a great housing option – there are problems. For instance, it only resolves the property issue. If there are other assets of the estate, those must still be probated. Second, what happens if the surviving spouse is admitted to a nursing home, leaving the property empty, wasting away in value and condition? Worse yet, what if the surviving spouse becomes mentally incompetent and cannot execute paperwork necessary for the upkeep of the property, like hiring contractors, and so forth?
In all these instances, it is not uncommon for family members (especially children from a prior marriage who stand to inherit the premises) to get into legal fights over when they are allowed to come in and sell off or take possession of the property. Remember that no matter how good the plan, it is only as good as the people involved. If the heirs begin fighting, a Ladybird Estate is usually not going to be a good choice. A smarter choice is a trust, along with a well-selected trustee who has the power and flexibility to deal with issues as they arise. And again, they can do it privately.
For more information about probate avoidance and special forms of deeds to help preserve family properties in Florida, call the Sejour-Gustave Law Firm, PLLC, or find us online today.