Transfer on Death Deed Florida: Why TOD Deeds Don't Exist Here and What to Use Instead

If you have searched for a transfer on death deed in Florida, you have likely hit a wall. Florida is one of the few states that does not recognize traditional TOD deeds for real estate. This can feel frustrating, especially when you hear how simple these deeds work in other states.

Here is the good news: Florida offers several alternatives that accomplish the same goal - transferring property to your loved ones without probate. In many cases, these alternatives provide even more flexibility and protection than standard TOD deeds.

This guide walks you through why Florida lacks TOD deeds, what options you have, and how to choose the right approach for your situation.

What Is a Transfer on Death Deed?

A transfer on death deed, sometimes called a beneficiary deed, allows property owners to name someone who will automatically receive their real estate when they die. The property transfers outside of probate, which saves time and money for families.

According to the Uniform Law Commission, 31 states have adopted some version of the Uniform Real Property Transfer on Death Act as of 2024 (Uniform Law Commission, 2024). These states allow property owners to execute a simple deed that:

• Names a beneficiary to receive property at the owner's death
• Keeps ownership and control with the original owner during their lifetime
• Can be changed or revoked at any time before death
• Requires no consent from the named beneficiary
• Transfers property automatically, bypassing probate court

The appeal is obvious. You fill out one form, record it with the county, and your property passes directly to your chosen person when you die. No lawyers, no court hearings, no months of waiting.

Why Florida Does Not Have TOD Deeds

Florida has not adopted the Uniform Real Property Transfer on Death Act. The Florida Legislature has considered TOD deed legislation several times, but it has never passed.

Several factors contribute to this:

Existing alternatives work well. Florida's Lady Bird deed (enhanced life estate deed) accomplishes most of what a TOD deed does, with some additional benefits. The legal community in Florida has decades of experience with these deeds.

Homestead protection concerns. Florida has some of the strongest homestead protections in the country under Article X, Section 4 of the Florida Constitution. These protections limit how homestead property can be transferred, especially when the owner has a surviving spouse or minor children. Adding another transfer mechanism could create conflicts with these constitutional provisions.

Creditor and Medicaid issues. Standard TOD deeds in some states have created complications with creditor claims and Medicaid recovery. Florida's existing alternatives have clearer rules around these issues.

Title insurance considerations. The Florida Bar and Florida Land Title Association have historically expressed concerns about how TOD deeds would interact with title insurance practices in the state.

The bottom line: while Florida may eventually adopt TOD deeds, the state's current alternatives serve most property owners well.

Lady Bird Deed: Florida's Best TOD Alternative

The Lady Bird deed, formally called an enhanced life estate deed, is Florida's answer to the transfer on death deed. Named after President Lyndon B. Johnson's wife (though the historical connection is murky), this deed type has become the go-to probate avoidance tool for Florida real estate.

How a Lady Bird Deed Works

When you create a Lady Bird deed, you transfer your property to a beneficiary (called the "remainderman") while keeping a special type of life estate for yourself. Unlike a traditional life estate, an enhanced life estate gives you:

• The right to live in and use the property for your lifetime
• The right to sell the property without the beneficiary's permission
• The right to mortgage or refinance the property
• The right to change your mind and name a different beneficiary
• The right to revoke the deed entirely

During your lifetime, you remain in complete control. The beneficiary has no rights to the property until you die. They cannot force a sale, cannot object to a refinance, and cannot claim any ownership interest while you are alive.

When you die, ownership transfers automatically to the beneficiary. They simply record your death certificate with the county, and the property is theirs. No probate required.

Lady Bird Deed Benefits

Probate avoidance. The primary benefit - your property passes outside of probate, saving your family time and money. According to the Florida Courts, even simple probate cases take a minimum of three to four months and often much longer (Florida Courts, Probate). Learn about the full Florida probate timeline.

Full control retained. Unlike a regular life estate or adding someone to your deed, you keep complete control. You can sell tomorrow without asking anyone's permission.

Tax benefits. Your beneficiary receives a stepped-up tax basis, meaning they inherit the property at its current market value for capital gains purposes. If you paid $100,000 for a house that is worth $400,000 when you die, your beneficiary's basis is $400,000. If they sell immediately, they owe zero capital gains tax.

Homestead exemption preserved. Your property tax exemptions remain in place during your lifetime.

Medicaid planning. Under current Florida Medicaid rules, a Lady Bird deed is not considered a disqualifying transfer for purposes of Medicaid eligibility. The Florida Agency for Health Care Administration has historically treated these deeds favorably, though you should consult an elder law attorney for your specific situation.

No property tax reassessment. The transfer at death does not trigger a reassessment that could increase property taxes.

For more details on how these deeds work, see our Lady Bird deed guide.

Lady Bird Deed Limitations

Lady Bird deeds are not perfect for every situation:

Homestead restrictions still apply. If you are married or have minor children, Florida's homestead descent and devise restrictions under Florida Statutes Section 732.401 limit who can receive your homestead property. A Lady Bird deed cannot override these constitutional protections.

Only works for Florida property. If you own property in multiple states, you will need different strategies for properties outside Florida.

Single owner complexity. If you want multiple beneficiaries to inherit as tenants in common, the deed language becomes more complex.

Some lenders are unfamiliar. While Lady Bird deeds do not trigger due-on-sale clauses, some lenders are not familiar with them and may raise questions.

Other Ways to Avoid Probate for Real Estate in Florida

Lady Bird deeds are the most popular option, but Florida offers other probate avoidance tools for real estate.

Revocable Living Trust

A revocable living trust (also called a living trust) is a legal entity that holds your property during your lifetime and distributes it according to your instructions when you die.

How it works: You create a trust document naming yourself as trustee (manager) and naming successor trustees and beneficiaries. You then transfer your property into the trust by executing a deed from yourself to yourself as trustee. When you die, your successor trustee distributes the property to your beneficiaries without probate.

Benefits:

• Avoids probate for all assets in the trust, not just real estate
• Works for property in multiple states
• Provides incapacity planning (your successor trustee can manage assets if you become unable to)
• Offers privacy (unlike wills, trusts are not public record)
• Allows complex distribution plans with conditions

Drawbacks:

• More expensive to set up ($1,500 to $5,000 or more for attorney fees)
• Requires ongoing maintenance (new assets must be transferred into the trust)
• More complex than a Lady Bird deed
• Some find the paperwork burdensome

A living trust makes sense when you have significant assets, own property in multiple states, want incapacity planning, or have complicated distribution wishes. For a single Florida property with straightforward beneficiaries, a Lady Bird deed is usually simpler and cheaper.

Compare these approaches in detail at our probate vs trust comparison.

Joint Ownership with Right of Survivorship

Adding someone to your deed as a joint tenant with right of survivorship means the property automatically passes to them when you die.

How it works: You execute a new deed naming both yourself and another person as owners, specifically stating you hold title as "joint tenants with right of survivorship." When one owner dies, the surviving owner automatically owns the entire property.

Benefits:

• Simple and inexpensive to set up
• Property passes automatically at death
• No probate required

Drawbacks:

• You give up control immediately (the other owner has rights to the property now)
• Cannot sell or refinance without the other owner's consent
• Exposes property to the other owner's creditors, lawsuits, and divorce
• Only 50% stepped-up basis (potential capital gains tax issue)
• Creates a gift for tax purposes
• Difficult to undo

Joint ownership is risky for most situations. You are giving someone partial ownership of your property today, not just naming them as a beneficiary. If they get sued, go through a divorce, or have financial problems, your property could be affected.

Tenancy by the Entirety (Married Couples)

Florida allows married couples to own property as "tenants by the entirety." This form of ownership provides strong creditor protection and automatic survivorship.

How it works: Property owned as tenants by the entirety cannot be seized by the creditors of just one spouse. When one spouse dies, the surviving spouse automatically owns the entire property.

Benefits:

• Strong creditor protection
• Automatic transfer to surviving spouse
• No probate between spouses

Limitations:

• Only available to married couples
• Does not help with transfer to children or other beneficiaries
• Still need a plan for the second spouse's death

TOD Options for Non-Real Estate Assets in Florida

While Florida lacks TOD deeds for real estate, transfer on death designations work for many other asset types.

Motor Vehicles

Florida allows TOD designations for cars, trucks, motorcycles, and other motor vehicles. You can add a beneficiary to your vehicle title using HSMV Form 82050, available at any Florida DMV office or online through the Florida Department of Highway Safety and Motor Vehicles (FLHSMV).

The process is straightforward:

1. Obtain the form from the DMV
2. Fill in your beneficiary's information
3. Submit the form with your title
4. Pay any applicable fees

When you die, your beneficiary brings your death certificate to the DMV and receives a new title in their name. No probate needed. Learn more about transferring property after death in Florida.

Bank Accounts (Payable on Death)

Most Florida banks allow you to add a payable-on-death (POD) designation to checking accounts, savings accounts, money market accounts, and certificates of deposit.

To add a POD beneficiary:

1. Ask your bank for a POD beneficiary form
2. Provide your beneficiary's name, address, and Social Security number
3. Sign the form

The beneficiary has no access to the account while you are alive. After your death, they bring a death certificate to the bank and receive the funds directly.

Investment and Brokerage Accounts

Brokerage accounts, individual stocks, bonds, and mutual funds held outside retirement accounts can have TOD beneficiary designations.

Contact your brokerage firm to:

1. Request a TOD registration form
2. Name primary and contingent beneficiaries
3. Specify percentage allocations if naming multiple people

Major brokerages like Fidelity, Charles Schwab, and Vanguard make this process simple through their online account management portals.

Retirement Accounts

401(k)s, IRAs, 403(b)s, and other retirement accounts pass by beneficiary designation, not through your will. Federal law (ERISA) and IRS regulations govern these transfers.

To designate beneficiaries:

1. Log into your retirement account or contact the plan administrator
2. Complete the beneficiary designation form
3. Name primary and contingent beneficiaries
4. Update designations after major life events (marriage, divorce, births, deaths)

Warning: Retirement account beneficiary designations override your will. If you named an ex-spouse years ago and never updated the form, they may receive the account even if your will says otherwise. This is one of the most common probate mistakes families make.

For more on beneficiary designations, see our beneficiary designation guide.

Comparing Your Options: Which Approach Is Right?

When to Choose a Lady Bird Deed

A Lady Bird deed works well when you:

• Own a single Florida property (or a few Florida properties)
• Want a simple, inexpensive solution
• Do not need incapacity planning through the property
• Have straightforward beneficiary wishes
• Want to preserve Medicaid eligibility options

When to Choose a Living Trust

A living trust makes more sense when you:

• Own property in multiple states
• Have significant total assets
• Want incapacity planning built in
• Need complex distribution conditions (ages, milestones, etc.)
• Value privacy over simplicity

When to Use Multiple Strategies

Most Florida residents use a combination:

• Lady Bird deed for the house
• POD designations on bank accounts
• TOD designations on brokerage accounts
• Beneficiary designations on retirement accounts and life insurance
• A simple pour-over will to catch anything missed

This approach avoids probate for most assets while keeping costs low.

How to Create a Lady Bird Deed in Florida

If you have decided a Lady Bird deed fits your situation, here are the steps.

Step 1: Consult an Attorney

While Lady Bird deeds are simpler than trusts, the legal language matters. An improperly drafted deed could fail to accomplish your goals or create tax problems.

Look for an attorney who:

• Regularly practices real estate law in Florida
• Has experience with Lady Bird deeds specifically
• Understands Florida homestead law
• Can advise on your overall estate plan

Expect to pay $200 to $500 for attorney preparation, depending on your location and the complexity of your situation.

Step 2: Gather Property Information

Your attorney will need:

• Current deed showing how you hold title
• Property legal description (from existing deed or property appraiser's website)
• Property address and parcel identification number
• Information about any existing mortgages
• Names, addresses, and relationships of intended beneficiaries

Step 3: Address Homestead Issues

If the property is your homestead and you are married, Florida law restricts your ability to devise (leave by will or deed) the property. Under Florida Statutes Section 732.401, if you have a surviving spouse, they have certain rights to the homestead regardless of what your deed says.

Your attorney will help you determine whether:

• Your spouse needs to sign the deed
• The deed needs specific language about spousal rights
• Alternative planning is needed

Step 4: Execute the Deed Properly

Florida requires specific formalities for deed execution under Florida Statutes Section 689.01:

• The deed must be signed by the grantor (you)
• Two witnesses must sign
• A notary public must notarize your signature
• The witnesses should not be beneficiaries

Step 5: Record the Deed

File the executed deed with the Clerk of Court in the county where the property is located. Recording fees vary by county but typically run $10 for the first page and $8.50 for each additional page, plus documentary stamp tax if applicable (Lady Bird deeds typically do not require documentary stamps because no consideration changes hands during the owner's lifetime).

You can record in person, by mail, or through an e-recording service in most Florida counties.

Step 6: Keep the Original Safe

Store your original recorded deed with your other important documents. Give copies to your beneficiaries so they know the deed exists.

After Death: How the Transfer Happens

When a Lady Bird deed owner dies, the transfer process is straightforward:

1. Obtain certified death certificates. Order several copies from the Florida Department of Health or the county vital records office. Most counties need one to two weeks to issue certificates.

2. Record the death certificate. File a certified copy of the death certificate with the Clerk of Court in the county where the property is located.

3. File any required affidavits. Some counties require an affidavit of survivorship or similar document. Your attorney or the clerk's office can advise on local requirements.

4. Update property tax records. Contact the county property appraiser to update ownership records and apply for any applicable exemptions (homestead, etc.) in the new owner's name.

5. Update homeowner's insurance. The new owner should contact the insurance company to transfer or obtain a new policy.

No court involvement required. No waiting for probate. The entire process typically takes a few weeks.

Common Mistakes to Avoid

Mistake 1: DIY Deed Drafting

Online legal form sites offer Lady Bird deed templates, but Florida real estate law has nuances. Improper language can:

• Fail to create a true enhanced life estate
• Trigger unintended gift tax consequences
• Violate homestead restrictions
• Create title insurance problems later

The few hundred dollars for attorney preparation is worth the peace of mind.

Mistake 2: Forgetting About Mortgages

Lady Bird deeds do not affect existing mortgages. Your beneficiary inherits the property subject to any liens. If there is a mortgage, the lender may have a due-on-sale clause, though these are rarely enforced against inherited property under federal law (Garn-St. Germain Act).

Make sure your beneficiary knows about any mortgage and has a plan for either paying it off or continuing payments.

Mistake 3: Ignoring the Rest of Your Estate Plan

A Lady Bird deed handles one property. What about your bank accounts, investments, vehicles, and personal belongings? A deed alone is not an estate plan.

At minimum, you should also:

• Add POD/TOD beneficiaries to financial accounts
• Update retirement account beneficiaries
• Have a will for assets that do not have beneficiary designations
• Consider a durable power of attorney for incapacity

Use our probate checklist to make sure you have covered all the bases.

Mistake 4: Not Updating After Life Changes

Your Lady Bird deed names specific beneficiaries. If circumstances change, you need to update the deed:

• Beneficiary dies before you
• Divorce or remarriage
• Estrangement from a beneficiary
• Birth of children or grandchildren
• Beneficiary has creditor or addiction issues

Unlike a will, a Lady Bird deed is a recorded document. To change beneficiaries, you execute and record a new deed.

Frequently Asked Questions

Can I create a TOD deed in Florida?

No. Florida does not recognize transfer on death deeds for real estate. The closest alternative is a Lady Bird deed (enhanced life estate deed), which provides similar benefits.

What is the difference between a Lady Bird deed and a TOD deed?

Both transfer property at death without probate. The main difference is legal structure. A TOD deed names a beneficiary directly on the deed. A Lady Bird deed uses an enhanced life estate, where you keep a life estate with special powers and name a remainderman who takes ownership at your death. Practically, they accomplish similar goals.

Can I add a TOD beneficiary to my Florida bank account?

Yes. Florida banks allow payable-on-death (POD) designations on deposit accounts. Ask your bank for a beneficiary designation form.

Do I need a lawyer for a Lady Bird deed?

While not legally required, attorney preparation is strongly recommended. The specific language matters, and mistakes can be costly to fix.

Will a Lady Bird deed affect my property taxes?

No. Your homestead exemption stays in place during your lifetime. The transfer at death does not trigger a reassessment in most cases.

Can I sell my property after creating a Lady Bird deed?

Yes. That is one of the key benefits of a Lady Bird deed. You retain full authority to sell, mortgage, or lease the property without your beneficiary's consent.

What happens if my beneficiary dies before me?

If your named beneficiary (remainderman) dies before you, the deed language controls what happens. Most Lady Bird deeds either name contingent beneficiaries or specify that the remainder interest passes to the beneficiary's heirs. Proper drafting addresses this scenario.

Does a Lady Bird deed protect my property from Medicaid?

Lady Bird deeds are often used in Medicaid planning because the transfer is not considered a disqualifying gift under current Florida Medicaid rules. However, Medicaid rules change, and your specific situation matters. Consult an elder law attorney before relying on this for Medicaid purposes.

Next Steps

Now that you understand your options for transferring property without probate in Florida:

1. Assess your situation. How many properties do you own? In which states? What are your distribution wishes?

2. Consider your overall estate plan. A Lady Bird deed is one piece. What about your other assets?

3. Consult a Florida attorney. Get specific advice for your circumstances.

4. Take action. The best estate planning tool is the one you actually complete.

Need help understanding your options? Start with our free probate assessment to get personalized guidance for your situation.

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Sources:

• Uniform Law Commission. (2024). Real Property Transfer on Death Act. uniformlaws.org
• Florida Constitution, Article X, Section 4 (Homestead Exemptions)
• Florida Statutes Section 732.401 (Descent of Homestead)
• Florida Statutes Section 689.01 (Deed Formalities)
• Florida Department of Highway Safety and Motor Vehicles. flhsmv.gov
• Florida Courts. Probate Information. flcourts.gov

This guide provides general information about transfer on death deeds and alternatives in Florida. It is not legal advice. Consult a licensed Florida attorney for your specific circumstances.

Last updated: January 2026