Should I Have a Lady Bird Deed or a Trust To Avoid Probate In Florida?

One of the most common questions Florida homeowners ask is a simple one: “What’s the cleanest, most affordable way to pass my home to my family without sending them through the court system known as probate?”

It’s a reasonable goal. Nobody wants to leave their loved ones a probate case to untangle. Probate in Florida is notoriously expensive and very time-consuming. In Florida, two common tools to avoid probate are often mentioned: the Lady Bird Deed (aka, the enhanced life estate deed) and the revocable living trust. Both avoid probate. Both keep you in control while you’re alive. But they are not the same, and choosing the wrong one can cost your family time, money, and clarity.

This guide walks through how each works, what each costs, and which one is likely to fit your situation.

Why Avoiding Probate Matters

Probate is the court-supervised process of identifying beneficiaries, settling debts, and distributing any remaining assets. In Florida, a formal administration typically takes six to twelve months — sometimes longer — and it’s a matter of public record, so anyone can see who inherited what.

There’s also a cost. Florida’s statutory attorney and personal representative fees are roughly 3% of the estate, so an estate of around $500,000 can incur approximately $15,000 in fees before heirs receive anything.

Example: Jim passed away with his homestead property in his name only. There is no co-owner, and he did not have a lady bird deed or a trust for his property. Jim’s homestead was worth $400,000. 

Result: Jim’s beneficiaries will need to hire a probate attorney to put his homestead through probate. Many attorneys will try to charge around $12,000 for probate.  

When Does a Probate Occur and How to Avoid It

Probate occurs when a person passes away and has assets solely in their name. This means that the asset does not have a co-owner, a beneficiary, or another means of transferring it upon death, such as a revocable trust or a ladybird deed. Contrary to what most people think, having a simple last will and testament does not ensure that assets pass outside of probate. In fact, any assets that pass through someone’s last will and testament have to go through probate and the court system. 

You can avoid probate by taking one or more of the following steps:

1. Adding a co-owner onto a financial account. 
2. Adding a beneficiary or beneficiaries to a financial account. 
3. Creating a revocable trust and placing real property and financial assets into the trust. 
4. Creating a lady bird deed for real property. 

Caution: We rarely recommend adding a co-owner onto a financial account to avoid probate. When you add a co-owner to an asset, you lose control over part of the asset; you open the asset up to any creditors of that co-owner; it can cause adverse tax consequences; and it can cause issues for qualifying for long-term care benefits like Medicaid. 

The Lady Bird Deed

A Lady Bird Deed—also known as an enhanced life estate deed—allows you to keep full control of your home while you’re alive. Then it transfers the property directly to your beneficiaries listed upon your death. The individuals listed as beneficiaries on the lady bird deed are referred to as remainder beneficiaries because they only receive the remainder after you pass away. 

There is no probate for that property. Your beneficiaries simply record a copy of your death certificate, and the home passes to them. In practice, it functions much like a pay-on-death designation on a bank account, applied to real estate.

Example: Jane executed a lady bird deed shortly before she died for her homestead property here in Florida. She listed her four children as the remainder beneficiaries on the lady bird deed. 

Result: Jane’s homestead will pass outside of the Will and will not go through probate. Her four children receive the property in equal shares. 

Florida is one of only about five states where these deeds are recognized in practice (the others are Michigan, Texas, Vermont, and West Virginia). No Florida statute defines the deed directly; its authority comes from more than a century of court decisions and the Florida Bar’s title standards, and title companies across Florida accept properly drafted versions.

What makes the deed “enhanced,” rather than a traditional life estate, is that you retain complete control. You can:

• Sell or refinance the property without your beneficiaries’ permission
• Change the named beneficiaries at any time
• Revoke the deed entirely, up until your death

Most states only recognize a traditional life estate deed. With a traditional life estate deed, you would need your beneficiaries’ consent to sell the property, or even to refinance. The enhanced version—the lady bird deed—gives you full power over the property while you’re alive. 

The main benefits:

• Avoids probate on the deeded property
• Preserves your Florida homestead exemption and creditor protections
• Does not trigger documentary stamp taxes or a property tax reassessment
• Provides your heirs a step-up in basis at your death, which can significantly reduce capital gains tax if they sell
• Does not count as a “gift” that would affect Medicaid eligibility

That last point is worth explaining. Because a Lady Bird Deed is an incomplete gift — you can revoke it at any time — Florida’s Medicaid program does not treat it as a transfer subject to the lookback penalty. Your homestead remains your homestead, so it is generally protected from the nursing home while you’re alive. And because the property avoids probate, it stays beyond the reach of Medicaid Estate Recovery as well. 

Its limitations: A Lady Bird Deed only covers the real estate named in it. Everything else you own — bank accounts, investments, a second property — still needs its own plan. The Lady Bird Deed only covers the specific property that the Lady Bird Deed is created for. 

Caution: Naming multiple beneficiaries can create co-ownership, leading to disputes or even a partition lawsuit. The deed is also a poor fit if you have minor children or a blended family with competing interests. 

The Revocable Living Trust

A revocable living trust is a legal entity you create, control, and can amend or dissolve at any time. You transfer your assets into the trust — the house, accounts, and any out-of-state property — and name a successor trustee to manage and distribute everything when you die or become incapacitated. Governed by Chapter 736 of the Florida Statutes, it is the most widely used probate-avoidance tool in the state. Any assets titled in the name of the trust, or any assets that list the trust as a beneficiary, will avoid probate.

During your lifetime, little changes. You serve as trustee, live in the home, use the accounts, and file the same tax return. The IRS treats it as a “grantor trust,” so you do not need to file any additional tax returns. Additionally, you can freely move assets in and out of the trust. 

Example: Jim created a revocable living trust. He transferred his bank accounts, investment accounts, his Florida homestead, and his New York vacation property into his revocable living trust. Jim passed away shortly after he set up his revocable trust. His daughter was the sole beneficiary of his revocable trust. 

Result: All of Jim’s assets in his revocable trust will pass free and clear to his daughter. Probate in Florida and New York will not be required. Additionally, all of Jim’s trust assets receive a step-up in basis for tax purposes, so his daughter will not have to pay any capital gains taxes when she sells the properties. 

The advantages of a revocable trust:

• It can hold all your assets, not just one property
• The trust assets receive a full step-up in basis for tax purposes for your beneficiaries after death
• The trust is private. There is no public court record of your assets or beneficiaries
• If you become incapacitated, your successor trustee steps in immediately, without a court-appointed guardian
• It avoids ancillary probate on real estate you own in other states
• You can easily make changes to the trust through a trust amendment
• It is built for complex planning. You can protect assets for children after you pass (e.g., divorce, car accidents, financial issues). You can also create special needs trusts to protect assets for any disabled beneficiaries.
• You can vary distributions: you can leave specific amounts to beneficiaries, percentages, and you can list out different charities as beneficiaries 

This flexibility is the trust’s central strength. A Lady Bird Deed transfers the property. A trust can direct that assets be held for a child until a certain age, distribute specific property to specific people, and provide for a spouse for life.

Points to be aware of:

• It costs more up front 
• It only works if you fund it, which means you re-title your assets into the trust’s name, or you list the trust as the beneficiary. An unfunded trust is the most common reason trusts fail to avoid probate
• It does not protect your assets from creditors while you’re alive; under Fla. Stat. §736.0505, creditors can still reach trust assets
• It does not help you qualify for Medicaid, as those assets remain countable

Well-drafted trust plans also include a pour-over will, which directs any overlooked assets into the trust. One caveat: anything caught by that pour-over will still passes through probate. Funding the trust properly avoids that.

Lady Bird Deed vs. Trust: a side-by-side comparison

In short, the deed is precise and inexpensive, suited to a single purpose. The trust is more comprehensive and costs more, but it can coordinate an entire estate.

Which one is right for you?

Here’s a practical way to think through the decision.

A Lady Bird Deed may be the better fit if:

• Your estate is essentially one Florida home
• You’re single or widowed, with adult beneficiaries you trust
• You want probate avoidance at a low cost
• You’re doing Medicaid planning and want to keep the home out of estate recovery

A revocable living trust is likely worthwhile if:

• You own multiple properties, particularly in more than one state
• You have minor children, disabled beneficiaries, a blended family, or beneficiaries who need structured distributions
• You want to plan for incapacity
• You have a mix of accounts, investments, and real estate to coordinate
• You want a single document governing your entire estate

The Limits of a Lady Bird Deed and Revocable Trust

For a complete picture of both tools, it’s important to understand the limits of both:

• Neither shields your assets from your own creditors while you’re alive. Your Florida homestead provides that protection on its own, under the state constitution.
• Neither replaces a will that names a guardian for your children.

Estate planning is not a one-time task. It’s worth reviewing your plan every few years, or after any major life change.

Frequently Asked Questions

1. Does a Lady Bird Deed avoid Probate in Florida?

Yes. A properly drafted and recorded Lady Bird Deed transfers the named real property directly to your beneficiaries at death, with no probate case for that property — they record your death certificate. It covers only the real estate named in the deed, so other assets still need their own plan.

2. Is a Lady Bird Deed the same as a transfer-on-death deed?

No. Florida does not have a transfer-on-death deed statute. The Lady Bird Deed achieves a similar result through Florida’s common-law enhanced life estate doctrine — the same outcome by a different legal mechanism.

3. Can I still sell or refinance my house after signing a Lady Bird Deed?

Yes. That flexibility is the point of the enhanced life estate. You keep the right to sell, mortgage, refinance, or revoke the deed without your beneficiaries’ consent. When you sell, the deed should convey full fee simple title so the buyer’s title is clear.

4. How much does each option cost in Florida?

An attorney-prepared Lady Bird Deed typically runs $250–$700, including recording. A revocable living trust package — trust, pour-over will, power of attorney, and healthcare directives, with funding assistance — typically runs $1,500–$4,500. Compared to the roughly $15,000 in fees a $500,000 probate estate can incur, either tool is a good investment.

5. Will a revocable trust protect my assets from creditors or help with Medicaid?

No to both. Under Fla. Stat. §736.0505, a revocable trust’s assets remain reachable by your creditors, and Florida treats them as countable resources for Medicaid. A revocable trust is a probate-avoidance and management tool, not an asset-protection device.

6. Do I need a lawyer, or can I use an online form?

Florida does not legally require an attorney to prepare a deed, and a form-prepared Lady Bird Deed can be valid. But forms cannot determine whether your spouse must join, how homestead rules apply, or what happens if a beneficiary dies first — and those judgment calls are where do-it-yourself deeds often fail. For trusts, the Florida Supreme Court has held that preparing one for another person without a law license is the unauthorized practice of law. This is an area where professional guidance is well worth the cost.

The bottom line

If your situation is one Florida home and a straightforward wish to pass it on, the Lady Bird Deed is an effective, low-cost tool that does exactly what you need. If your circumstances are more complex — multiple assets, minor children, a blended family, out-of-state property, or a concern about incapacity — the revocable living trust provides the comprehensive plan to match.

The families who fare best are the ones who put a plan in place rather than leaving the court to sort things out.

The best next step is to consult a Florida estate planning attorney, review what you actually own, and determine whether a deed, a trust, or a combination fits your life. A short planning session now can save your family months of difficulty later.

Have a question about your own situation? Feel free to reach out to one of our estate planning attorneys for a free consultation. 

This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Florida law changes, and every family’s situation is different. Please consult a licensed Florida estate planning attorney before making decisions about your property or estate. For further authoritative reading, see the Florida Bar’s consumer pamphlet on revocable trusts.