I recently completed a Texas Enhanced Life Estate deed for a client, otherwise known as a Texas Lady Bird Deed. Being a history buff, I always appreciate how certain legal terms are coined.

The name Lady Bird Deed originated from when former President Lyndon B. Johnson used this type of deed to transfer property to his wife, popularly known as Lady Bird Johnson. A law professor then used the name when demonstrating how these types of deeds work, and the name stuck. Texas is actually one of the few states to recognize a Lady Bird Deed.  Depending on your circumstances, this may be a viable option for you. 

What Is A Lady Bird Deed?

A Texas Lady Bird Deed is a special type of estate deed designed specifically or Real Property owners to transfer property to beneficiaries in order to avoid probate at death. The Texas Lady Bird Deed gives the current property owner continued control of the property until their time of death.

What Terms Are Important To Know?

The owner of the property (or the grantor) who creates a Lady Bird Deed continues to own the property for the rest of his/her life.

The other person named as the grantee in the Deed, is called the remainder beneficiary.

What Makes A Lady Bird Deed Different From Other Deeds?

The main distinguishing feature of the Lady Bird Deed is that the current owner (or grantor) maintains the right to sell, transfer, or mortgage the property until his or her death without the remainder beneficiary’s (or grantee’s) consent.

Under traditional deeds, the grantor cannot transfer complete ownership of the property without the remainder beneficiary’s consent. In Texas, a Ladybird Deed overcomes this restriction by reserving the grantor’s enhanced powers over the property. The grantor also can withdraw or change his/her mind about the gift of the real property to the grantee.

What Are The Advantages Of A Lady Bird Deed?

1. Avoid Probate

Texas Lady Bird Deeds are designed to avoid probate. The property automatically transfers to the grantee when the current owner dies, so probate is not legally required.

2. Medicaid Asset Protection

Additionally, Texas Lady Bird Deeds can be used to preserve Medicaid eligibility during the owner’s life. The grantee can avoid losing property to the government’s Texas Medicaid Estate Recovery Program when the grantor dies.

There are other benefits, one of which is the reduced cost of avoiding probate for the grantee since the property automatically transfers to the grantee at death.

What Are Some Potential Disadvantages Of A Lady Bird Deed?

1. Not Ideal for Multiple Beneficiaries.

If you are looking to leave a property to multiple beneficiaries, this may not be the deed for you.  All beneficiaries listed would have to agree on what to do with the property or how to manage it.

2. Only Applies To Real Property:

If you have any other assets you wish to distribute outside of Real Property, this must be done through a will, trust, or other instrument.

Is A Lady Bird Deed Right For You?

The only way to determine if this is a good fit for you is by working with a qualified estate planning attorney to develop a plan to achieve your estate goals. 

I am here to help you take the next steps, whatever they may be, to protecting your family and the assets you’ve worked so hard for.

A year or so ago, a great friend of mine that I’ve known since junior high was involved in a major car accident. He and his wife of 20 years were returning home from a much- needed date night in Houston.  Their two children were comfortable at home with a babysitter about half an hour away.

It was fairly late at night and while driving on the freeway, a high performance car was careening down the freeway at an extreme rate of speed. My friend was driving his pickup truck, his wife was in the passenger seat. He saw the headlights of a car behind him, but quickly noticed a second set of headlights were rapidly approaching behind them in their lane of traffic. The performance vehicle struck the passenger car directly behind my friends truck with such terrific speed and impact that it immediately flipped the passenger car into the air and plummeted directly into my friend’s truck bed, causing the truck to slide up the guard rail, which also happened to be exactly where the freeway crossed a bayou. The truck rolled onto its side and was immediately struck from behind by the performance car while the passenger car that had landed in the bed of the truck was catapulted out, landed on the freeway and immediately burst into flames. All the occupants in the third car were immediately consumed by the resultant fire while the driver of the performance car walked away, uninjured-his car though was obviously totaled.

My friend and his wife were able to get out of his truck only by opening the moonroof and squeezing out. They had been spared. They could have ended up in the bayou or worse-the collision could have resulted in their deaths as well.

I relate this story to our topic, the importance of having a will, as my friend and his wife had been discussing having a will drafted by an attorney for years.  However, taking action on this process had been put to the side due to their work schedule and the typical life demands of parents that both work.

The accident later caused both my friend and his wife to re-evaluate their lives-having a newfound understanding of how life can change in an instant.  They also discussed-at length, the importance of getting a will completed as they have children that are minors.  They asked hard questions:  What would have happened to their family had they not survived the accident that night? Who would be the legal guardians of their children? Who would manage their estate if they had both passed? How would their property be distributed? Why did they wait until a life-changing moment to ask these questions?

These are great questions to ask no matter how old or young you are, and are questions that would be addressed by a properly constructed will.

Although you can find directions on how to write a will yourself or follow a template on the web, it is best to find an experienced estate planning attorney in Texas. If the will is improperly constructed, a probate court would likely declare the will invalid. With an invalid will, a court would apply the inheritance rules for someone who died without a will, otherwise known as intestate.

It’s important for every Texan to have a Will. Whether you are single or married, have kids or not-everyone needs a will.  From the smallest to largest estates, it is important to have your wishes properly constructed for your successors. If you don’t have a will, this should become a top priority for you and your family. Additionally, If you have a will, and haven’t updated it in several years, you should consider updating it to reflect life changes that have inevitably occurred since that initial will was completed.

Let’s talk about a few reasons you should have a will completed by an experienced attorney licensed to practice in the state of Texas:

1. With a will, you can direct where and to whom your estate will go after your death. If you died without a will as mentioned above (intestate) your estate would be distributed according to Texas law without your wishes perhaps being taken into account.

2. Wills make the administration of your estate after your passing run smoothly. The distribution of your assets after your death will be made efficiently and without confusion according to a clearly completed will.
3. A properly completed will is the only way to clearly name the person that you have chosen to administer your estate and distribute it according to your instructions. Without a will that names an executor of your estate, the court WILL make the choice for you.
4. If you have children under the age of 18 (a minor), a properly constructed will can allow you to appoint a guardian of these children should both you and the other parent die. You can also select alternate guardians should the initially named person(s) be unable to care for the child(ren).

Additionally, you should update your will if it has been quite some time since its initial completion for the following reasons:

1. If another child is added to your family through birth or adoption, it is essential to update your will. Without an update to your will, this new child may not inherit a part of your estate that you may otherwise wish them to receive.

2. If you are contemplating divorce or have recently divorced, an updated will would prevent your former spouse from inheriting anything upon your death that would otherwise go to them due to an outdated will.
3. If your named executor or a beneficiary dies, a properly constructed, updated will would address this issue and allow you to name a new executor and/or beneficiary. Otherwise, as mentioned above, the court would more than likely appoint an executor.
4. You may wish to update your will if you come into a large amount of money or other assets that you did not previously have and would like to address as to how they are distributed.
5. Finally, if your original will has been lost, a new will is essential to complete to ensure your estate will not be treated as one without a will.

The moral of this story?  Don’t wait until catastrophe strikes to take action to protect your family and your possessions.  A strong will that can stand up in court can be completed in a reasonable amount of time, depending on the complexity of the estate. 

When you’re ready to take the next steps to have a will written, I’m here.  We will work together to protect what is yours and those most precious to you.