Yes, any individual can draft, execute, and record a lady bird deed, but most do not. Since a lady bird deed is a complex legal document transferring an interest in real property, typically the largest asset in a person's estate, most people enlist the aid of an attorney to avoid the dire consequences of a mistake.
A lady bird deed, also called an enhanced life estate deed, is a legal document that allows you to retain both control and ownership of your property while giving one or more others a future interest in the property which manifests after your passing. After you die, as long as the deed is valid, executed, and recorded properly, the property will automatically transfer to the person or persons named in the deed. This is a simple way to attempt to avoid the probate of certain property in your name.
However, if the language in the lady bird deed is incorrect, if the deed is not executed properly, or recorded properly, the best case scenario is that the deed will be deemed invalid and have no effect. Some of the more harsh consequences include inadvertently passing a present (not future) interest in the property to a third person, or taking away the property owner's powers to convey, lease, mortgage, or encumber the property without the consent of a third party, or legally conveying all of the owner's interest in the property to a third party.
Lady bird deeds are not the only tool available, and also may not be the best tool available for planning your estate. An attorney can help you understand the benefits and drawbacks of a ladybird deed to ensure that it is the best fit for your situation.
Lady bird deeds are powerful tools in estate planning not available in most states that can save an incredible amount of time, money, and hassle while avoiding probate, but they should not be taken lightly. Always enlist the aid of an attorney to help prevent the dire consequences of doing a lady bird deed incorrectly.
Published: Nov 8, 2022
Updated: Mar 22, 2023
PublicationsQuitclaim Deeds: Origins, Benefits, and Risks