How Is an LLC Treated in a Divorce?

How an LLC is treated in a divorce depends primarily on whether it is marital property or not. If the LLC is a marital asset, then it may be divided during the divorce proceedings.

However, the divorce court will divide your ownership interest in the LLC, and not the business assets. Even if the LLC is your separate property, the increase in its value during the marriage may be awarded to your spouse.

The second most important factor is whether you own the entire company, or just a part of it. If you are a part owner, then the LLC’s operating agreement probably prohibits transfer of your ownership share in the event of divorce. In that case, only your share of the value of the business is divisible.

Who Will End up with the LLC in a Divorce?

Many small business interests a married couple may own are LLC’s. This is because a Limited Liability Company is easy to form, easy to manage, and easy to adapt to accommodate growth.

If you and your spouse own the entire business, then in over twenty years of divorce lawyering, my experience has been that one of the spouses ends up with all of the company. The other spouse then gets other marital property in exchange, such as the marital home.

There a number of reasons for this.

First, most small businesses are one person’s “baby,” even if the other spouse put in a lot of hard work to build it.

Second, you are probably less motivated to run the company if your former spouse owns half of the business.

Third, if you are part owner of a family business, the operating agreement probably prohibits transfers to people who are not family members.

One of my clients and his wife did decide to continue to own and operate their family businesses together after their divorce. It is possible, if you are better business partners than a married couple. However, their situation is definitely the exception.

Is the LLC marital property or non-marital property?

This is the first question you must answer. However, the answer depends on several factors.

Do you live in a community property state or an equitable distribution state?

Community Property State

Community property states generally consider all marital property acquired during a marriage as marital property. It does not matter which spouse’s name is listed as owner of the property.

Your LLC is presumed to be marital property, if you live in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas or Washington, then .

Equitable Distribution State

If you do live in any other state, then you are in an equitable distribution, or a common law state. In these states, if the LLC is in one spouse’s name, then it is presumed to be separate property.

Presumptions in Both Types of States are Rebuttable

In practical terms, it does not matter all that much which type of state you live in. The same factors that can overcome the presumption that an LLC is part of the community estate can in the alternative defeat the presumption that an LLC is separate property.

For instance, if an LLC was funded with money from an inheritance, it is probably considered separate property in a community property state. On the other hand, if an LLC is started with marital funds, then it is probably marital property, regardless of who “owns” the LLC.

Was the LLC Formed Before or During the Marriage?

If the LLC was formed before the marriage, then it starts out as separate property. However, in order to for it to remain separate, there must be no commingling with other marital assets.

Was the LLC Acquired Through a Gift or an Inheritance?

Sometimes people will inherit an LLC through a will or a trust fund. Sometimes a family member gift people an LLC. In all of these cases, the LLC is not subject to the division of property during the divorce process. If the receiver of that LLC continues to operate it as separate property, then it will remain theirs in the event of a divorce.

Was the LLC Capitalized with Separate Funds?

If a person inherits some money and then uses that money, and only that money, to form an LLC, then that LLC is separate property. However, if the LLC was formed during the marriage, and funded even partially with marital funds, then it is usually part of the marital estate.

Is the LLC subject to a prenuptial agreement?

A prenuptial agreement can protect an LLC from becoming marital property. However, a prenuptial agreement is not a magic bullet. They require careful drafting. You should get some legal advice from a competent family law attorney if you need to keep your LLC separate.

Even if there is a good prenuptial agreement in place, you must remain careful not to commingle the LLC with your marital property.

Is the LLC Subject to a Postnuptial Agreement?

A postnuptial agreement is made after marriage between spouses. Although the parties are still married, these agreements are kind of like separation agreements. They determine property division between the spouses in the event of divorce, and sometimes death.

Postnuptial agreements are even more difficult to draft correctly than prenuptial agreements. However, if done correctly, then they can keep an LLC as separate property.

Are Both Spouses Actively Involved Operating the LLC?

Sometimes an LLC is in only one spouse’s name, but both spouses are actively involved in its operation. In most divorce cases, such an LLC will be considered a disregarded entity for purposes of considering it as non-marital property.

Are LLC Funds and Assets Commingled With Marital Funds Assets?

This is probably one of the most important questions to ask. If the LLC is commingled with the marital estate, then it is almost never separate property, regardless of where you live.

Limited Liability Companies are designed to protect their owners from liability, not to protect the business during a divorce. Commingling the LLC with other personal property can also destroy its protection from owner liability. Therefore, commingling should be avoided, period.

How do you avoid commingling your LLC?

The LLC must be operated wholly separately from the remainder of the marital estate.

There must be no additional investments from any other source than the earnings of the company. If you invest marital savings, home equity, or spouses’ earnings, then you have commingled.

However, if you inherit money from your grandparents as your separate asset, then you can invest that in the LLC without commingling.

The non-owner spouse cannot work for the company for “free.” They must earn a fair wage, and those wages must be paid. Otherwise, the non-owner spouse’s contribution of labor will be considered their investment, and then the LLC will be commingled.

Some other ways to avoid commingling are listed below:

  • Maintain a separate bank account for your LLC
  • Keep a separate credit card for your LLC
  • Do not charge your groceries or your family vacations on your LLC card
  • Pay yourself a salary, and withhold taxes, social security and medicare
  • Do not pay for personal things from your LLC account

How is a marital LLC treated in a divorce?

If the limited liability company is indeed marital property, then the shares can be split between the spouses, one of the spouses can receive the whole LLC in return for a larger share of other assets, or the LLC can be sold or liquidated.

Can the LLC interest be split or shared between the spouses?

If the spouses can continue to share their interests in the LLC, then the solution is simple. Each spouse is awarded half of the LLC. There is no need for a business valuation, since it doesn’t matter how much the LLC is worth.

Other marital assets are easier to value. Real estate, cars, jewelry, and such can be appraised. Investments, bank accounts, and other such intangible assets do not need to be appraised.

Unfortunately, most LLCs do not lend themselves to sharing between former spouses.

Some type of LLC, such as a professional practice, cannot be shared between spouses, unless they are both in the same profession. For instance, a medical practice usually cannot be owned by non-doctors. The same is true for law firms.

Finally, if the LLC is a family business, and has members in addition to the married couple, then the family will have a lot to do with how an LLC is treated in a divorce. It is unlikely that the remaining LLC members would allow the divorced “non-family” person to remain in the business.

Buying out a spouse from the LLC

If the LLC cannot be shared, but one of the spouses wants to continue to operate it, then they will have to “buy out” the non-owning spouse.

In such cases, the spouses can agree on the value of the LLC, or they can spend some money to determine the value of the company. This may be easy if the LLC is a type of business that basically holds real estate.

However, the value of a business is a subjective thing. The person who is going to keep the business usually thinks it is worth less, while the other thinks it is worth more. Their respective divorce attorneys will certainly argue accordingly.

A judge would want to know the fair market value of the business. Arriving at that value in court will usually require testimony from a couple of expensive business appraisers as experts.

When the value is determined, then the remaining marital assets are divided in such a way that each spouse receives an equal amount of the total value of the marital estate.

Selling or Liquidating an LLC In Divorce

Sometimes a divorcing couple does not wish to continue LLC. Sometimes the business value is mostly made up of assets such as vehicles or heavy equipment. In those cases, it may make more sense to sell or liquidate the company.

If the company can continue to operate during the sale process, then the parties could each be awarded half the LLC. They would then split the proceeds at the time of closing.

If the company consists mainly of physical assets, then it could become an asset division case. The divorce decree could award certain pieces of equipment to each party, to do with as they please.

How Are Other Business Structures Treated In a Divorce?

If you have some other business structure, it will be treated similar to an LLC in divorce.

How is a Sole Proprietorship Treated in a Divorce?

A sole proprietorship type of business is not a separate entity from its owner. Examples of these would be a carpenter, handyman, e-bay reseller, author, etc., who has not created an entity for their business.

A sole proprietorship therefore is unlikely to be split between the couples. Nevertheless, if the business has some value, the non-owning spouse’s interest would be awarded as other property. In the alternative, the equipment and/or the inventory could be split between the couple.

If both spouses worked in the business, but they treated it as a sole proprietorship, the court would most likely consider the business to be a general partnership. In that case, both spouses would be equal owners, and many more options would be available to the Court.

How are Limited Partnerships Treated in a Divorce?

Limited partnerships, or a limited liability partnership, consist of one or more general partners and one or more limited partners. The general partner runs the business, while the limited partners contribute capital, but do participate in running the business.

These are complicated business arrangements. They are almost always governed by a comprehensive limited partnership agreement. The terms of that agreement will have a major impact on what happens to those interests in a divorce.

How is an S Corporation Treated in a Divorce?

An S corporation is generally a small business corporation with a limited number of shareholders. It becomes an “S Corporation” when it elects to have its shareholders taxed at regular income tax rates.

S Corporations usually have share transfer restrictions. Therefore, when those shares are marital property, an S Corporation is treated much like an LLC in divorce.

How is a C Corporation Treated in a Divorce?

A C Corporation is a regular corporation, managed by a board of directors and operated by officers. If it is a close corporation, share transfers are tightly controlled. The spouse that is not “in” is unlikely to get shares of the corporation as part of a divorce settlement. They will almost certainly receive their share as other marital assets.

If on the other hand the corporation is public, or its shares are widely dispersed, then the Court would probably just split the marital shares between the parties.


In summary, the form of LLC ownership before the divorce will have the greatest impact on how an LLC is treated in a divorce.

If the LLC was formed, owned, and operated by one of the spouses before the divorce, then it may very well be treated as that spouse’s separate property.

However, if the pre-marriage LLC was commingled during the marriage, or if it was formed during the marriage, then it will almost certainly be treated as marital property.

A marital LLC will usually end up as the property of one of the spouses, and the other spouse will be compensated with a greater share of other marital assets.

However, if the parties cannot, or do not want to, sell or continue the business, then the court will order liquidation of the LLC, as prescribed by state law.

By Steve Harton, a divorce attorney licensed in Florida, Utah and Wyoming. Steve serves clients in all three states from his office in Rock Springs, Wyoming. If you need some legal advice about probate, please schedule a consultation!

Step Parent Adoption in Alabama: Adopting Your Step Child

A step parent adoption is one of the types of adoptions allowed under Alabama law. In this type of adoption, one of the adoptive parents is the husband of the biological mother, or the wife of the biological father.

The most common types of adoption filed in Alabama are stepparent adoptions.

In this age of blended families, a person may be in a child’s life for many years. The stepparent often wishes to formalize this relationship and establish the legal bond of a parent and child with their step child.

In a step-parent adoption, the spouse of a natural parent adopts the spouse’s child. It should be noted that the adoptive parent and the biological parent must actually be married. One cannot adopt their fiancée’s, girlfriend’s or boyfriend’s child.

Although it is one of the relative adoptions, a step parent adoption in Alabama usually involves the termination of parental rights. Therefore it involves important legal issues, and you should consider getting legal advice from an Alabama adoption lawyer.

Some of the key issues in a stepparent adoption are consent, residency and a home study.

Who Must Consent to a Step Parent Adoption in Alabama?

An Alabama court will only grant a stepparent adoption if certain people consent. Generally, this means the consent of both birth parents.

First and foremost, the natural or legal parent must consent. Without his or her consent, there can be no stepparent adoption proceeding.

Second, the other biological parent must consent (in most cases). This consent can be in writing, or it can be implied by action, or excused under certain circumstances. More on this down below.

Thirdly, if he or she is fourteen years old or older, the minor child must consent to the adoption.

The Judge may excuse the child’s consent, if the child lacks the mental capacity to consent. This happens most often when a special needs child is in foster care.

Exceptions to the Consent Rule

There are some important exceptions to the rule. These situations require no consent.


When a biological parent abandons a child, then their consent is not required in the adoption proceeding

The state of Alabama considers a child abandoned if:

  • the father, with knowledge of the pregnancy, does not offer any emotional or financial support to the birth mother for prior to the child’s birth,
  • a parent leaves the child without provision for his or her identification for a period of 30 days

Leaving a Child with Family Members

Consent is also not required in Alabama adoptions if a parent leaves a child with others for a period of six months or more without providing support for the child and without communicating with the child or caregivers.

Failure to Respond to a Notice of Adoption

Alabama state statutes also do not require consent when a biological parent does not answer a notice regarding adoption proceedings within 30 days. The court basically defaults those parents.

Termination of Parental Rights

Consent is not required from parents whose legal rights to a child have been terminated by a court.

Relinquishment of Parental Rights

Parents forfeit their right to withhold consent when they relinquish their rights to a licensed adoption agency, or the Alabama Department of Human Resources.

Mental Incompetence

Finally, parents who are considered mentally incompetent do not need to consent to the adoption of their child.

Residency Requirement to Adopt a Stepchild

Alabama has a residence requirement for the adoption of a spouse’s child.

To adopt a stepchild, the child must reside with the adopting stepparent for at least one year prior to filing the petition for adoption. This is a longer time than for a non-stepparent adoption.

However, the Court may waive this requirement, if there is a good reason to do so.

Home Study for a Step Parent Adoption in Alabama

The Alabama home study process typically requires an investigation into the petitioner as well as the petitioner’s home. A social worker generally conducts this pre-placement investigation.

However, the stepparent provision in in the Alabama code, does not require the pre-placement and/or post-placement investigation. Unless the probate court, in its discretion, requires such an investigation.

If you feel that you and your spouse can meet the requirements for a step parent adoption, you must consider whether or not it is the right thing to do for your family.

Should I Adopt My Stepchild? (Or Should I Allow My New Husband/Wife to Adopt My Child?)

In today’s world, many parents find themselves remarried, and their children find themselves living with stepparents.

The stepparent should ask himself if he should adopt his stepchild. On the other hand, the natural parent should ask themselves whether they should allow their new spouse to adopt their child.

Adoption of A Child Creates a New Family Unit

You should only adopt your stepchild if you are prepared for a lifelong commitment.

Adoption is permanent.

Considerations for the Stepparent

Here is a list of some of the things a stepparent should think about before adoption their spouse’s children:

  • You cannot un-adopt your stepchild when he or she becomes a teenager, and starts hanging out with the wrong crowd, staying out all night, and getting into trouble.
  • You also cannot un-adopt your stepchild if your marriage ends in divorce. You will have to pay child support, if you do not have custody.
  • You will be responsible for your adopted child’s medical bills.
  • You will be responsible for any harm your adopted child causes to others.

Considerations for the Natural Parent

Some of the things a natural parent should think about before allowing their spouse to adopt their child:

  • Your child will also become your spouse’s child.
  • If you divorce, your spouse could end up with custody.
  • The adoption may cut off ties with the biological parent’s family.

It is important for bath parents to remember that adopting a stepchild is a lifelong commitment. The marriage may be very good now, but even good marriages can turn bad.

Both parents need to know that neither can simply change their mind about the adoption down the road if the marriage does not work out.

If you, as the stepparent, are unwilling to continue the parent/child relationship if the marriage goes south, then you should not adopt your stepchild.

You, as the natural parent, should not consent to the adoption, if you are unwilling to have your spouse continue the parent/child relationship in the event of a divorce.

Should the marriage end in divorce, both parents will still need to have cordial communications with the other, in order to co-parent the child.

No one wants to think about the possibility of divorce when things are going great at the beginning of a relationship. However, statistically, around half of all marriages end in divorce.

If you still decide to proceed with the stepchild adoption, then the stepparent adoption process is set out below.

Alabama Step Parent Adoption Process

Here is a list of steps you will need to take to make the step parent adoption in Alabama happen.

Line Out the Consents

The first thing to do is to make sure you have all the necessary consents.

Parental consent is a very important legal issue in a legal adoption process.

First and foremost, you need the consent of your spouse. The stepparent adoption will not happen if the natural parent spouse does not want the adoption.

Second, you need the consent of the other natural parent. If you cannot get the other parent’s consent, then you need to see if one of the exceptions apply.

If the other natural parent objects to the adoption, then the legal process is different. In such a case, you really should get help from an experienced adoption attorney.

Finally, you will need the consent of the child, if he or she is 14 years or older.

When you have the consent issues sorted, the next step is to file the Petition.

File the Petition

You file he petition with the probate court, along with the consents of the legal parents and the child (if 14 or older). You must also pay the filing fee, which varies by County, but is usually less than $100.

The petition to adopt a child is a relatively simple form. It contains the following information regarding the petitioner, the biological parents, and the child:

  • the names, dates of birth of the petitioner and the child,
  • the marital status of the petitioner,
  • the child’s birth name, and proposed name upon the completion of the adoption,
  • the county of residence of the petitioner and the child,
  • how long the child has resided with the petitioner, and
  • statements regarding the consent of the petitioner’s spouse, which is usually the mother.

In addition, attach the the child’s original birth certificate, and the marriage license of the petitioner and the child’s legal parent as exhibits.

Serve the Petition on Biological Parents and DHR

You must serve notice of the filed petition on the biological parents, as well as the Alabama State Department of Human Resources (DHR).

Service on Parents

The Alabama Rules of Civil Procedure set out the requirements for service on parents. However, parents can, and usually do, waive service when they sign their consent.

Service on DHR

You may serve the Alabama State Department of Human Resources by certified mail. However, you must be sure to serve the state office in Montgomery, not your local or county office.

Wait for DHR to Complete Its Investigation

The Alabama DHR will check the putative father registry for an unknown father, who may have registered as a possible father for the minor child.

In addition, the DHR will do a child abuse and neglect investigation. This is to make sure the Petitioner has not abused or neglected some other children in the past.

After the DHR makes its investigation, it will send an acknowledgment letter to the probate judge. Then the petition is ready for a hearing.

Adoption Hearing

Alabama’s adoption laws require that all adoptions be set for hearing before the probate judge. At this hearing, the Judge must find that all of the adoption requirements have been met.

These requirements are:

  • that the child has resided with the petitioner for the required time,
  • that all necessary consents have been obtained,
  • that service has been made to all persons entitled to receive notice,
  • that all contests have been resolved, and
  • that it is in the child’s best interests for the final adoption decree to be entered.

If all the requirements have been met, then the Judge will enter a Final Decree of Adoption, showing the new name of the child.

The legal effect of the Adoption Decree is that from that day on, the child is treated as the biological child of the petitioner.

Furthermore, the biological parent’s parental rights are terminated, and he or she will no longer have any parental responsibilities to the adopted child.

Getting a New Birth Certificate

After a successful adoption, the adopted child gets a new birth certificate. The former stepparent now listed as the biological parent.

Stepparent adoptions are the most common type of adoption, but there are other forms of adoption.

Other Various Types of Adoption

Some other types of adoption are listed below.

International Adoption

These adoptions involve people who adopt children in a foreign country.

Generally, the child is adopted in the foreign country, in accordance with that country’s laws.

The parents and the child then return to the United States. Then there is a proceeding in Alabama to adopt that foreign born child. Once that is done, then the parents can then get a birth certificate. The new certificate indicates the child was born to the parents in a foreign country.

Domestic Adoptions

All the other types of adoptions are domestic adoptions. There are several.

Private Adoptions

All adoptions are private. What this terms usually refers to is adopting a child who is not in the custody of DHR.

An example is when parents know that they want to give up their child for adoption right after birth. They may make arrangements for some family member or an acquaintance to take and adopt the child at birth.

Other examples of private adoptions are grandparent adoptions or other relative adoptions.

Adult Adoption

Adult adoptions are not very common. However, Alabama law permits people to adopt an adult.

The main requirement is that the adult to be adopted (and their spouse, if there is one) must consent.

Adult adoptions are also often step parent adoptions. They come about because a person develops a close relationship with their stepparent. Then want to cement that relationship when they become an adult person.

Uncontested Step Parent Adoptions in Alabama Are a Good Thing

Uncontested stepparent adoptions are some of the most pleasant family law cases that a law firm handles.

Even judges like them, because they are one of the few family law situations where nobody is fighting with anyone.

Do You Need a Lawyer for a Stepparent Adoption?

An uncontested stepparent adoption may be a case that could be handled by parents on their own, without a lawyer. The entire adoption process is relatively simple, and can be completed quickly.

Unfortunately, Alabama adoption forms are pretty scarce on the website of the Alabama Administrative Office of Courts (AAOC). The only adoption court forms available at the time of this writing is a Petition for Adult Adoption, and the related consent.

A stepparent adoption is a life changing event for all the parents, natural and adoptive, as well as their child.

The legal documents may be relatively simple, but they are extremely important. Adoption forms from any source other than the AAOC or a site such as Alabama Legal Help may be unreliable.

In addition, some Judges in some counties may have special requirements for stepparent adoptions in their courts. Using a local, experienced adoption lawyer is always your best bet.

Therefore, if you live in Birmingham, you should look for Birmingham stepparent adoption attorneys. On the other hand, if you live in Opelika, find yourself a Lee County adoption attorney.

By Steve Harton – I am an adoption attorney practicing mostly in Wyoming. I am also licensed in Utah and Florida. Although I did get my Bachelor of Chemical Engineering Degree from Auburn University, and I did live in Birmingham for a few years, I am not licensed to practice law in Alabama. As with all content on Lexedia, this article is legal information for everyone but not legal advice for anyone.

What is a Life Estate in Florida?

In this article, you will find out what is a life estate in Florida. A life estate can be used to avoid probate, but it has significant disadvantages. You will also learn about enhanced life estates, which are often called a Lady Bird Deed. Finally, we will discuss how the various life estates in Florida impact the probate process, and why you might consider using them when doing your estate planning.

What is a life estate?

A life estate is a type of joint ownership of real property. The joint owners are the life estate owner, and the remainder beneficiaries.

Life estates allow someone to live in their home during their lifetime and transfer it to a beneficiary upon their death.

It allows the original owner of a property to continue use of the property during his or her life. When the original owner dies, ownership of the property passes to the named beneficiaries.

The life estate owner, also known as the life tenant, gets to use the property during their lifetime. On the death of the life tenant, the property passes onto the remainder beneficiaries.

The transfer of the remainder interest happens outside the probate process. Therefore, life estates in Florida will work to avoid probate.

How do you create a life estate in Florida?

Any property owner can create a life estate. The owner of the property executes a traditional life estate deed. The deed names the life tenant, and then names the person or persons that will receive the property at the time of the life tenant’s death.

How does a life estate affect property ownership?

Real property is generally owned in fee simple. This means that the current owner of the property owns all interests in the property. This is true, even if there is a mortgage on the property, or if more than one person owns the property.

A quit claim deed or a warranty deed usually conveys property in fee simple.

However, a regular life estate deed splits ownership of the property into two estates. The first is the life estate and the second is the remainder interest.

The owner of the life estate interest gets use of the property during their lifetime. The owner of the remainder interest gets to inherit the property when the life tenant dies.

The problem with a life estate is that use of the property does not equal complete control of the property. The life estate owner cannot sell the property without the remaindermen’s consent. The life estate owner also cannot mortgage the property without the remaindermen’s consent.

The loss of full control of the property is one of the reasons that Florida residents rarely create a traditional life estate.

What is the benefit of a life estate?

A life estate can help a property owner avoid probate, and can help with Medicaid planning.

Avoiding Probate

The main benefit of a life estate is that the property will pass to the beneficiaries by operation of law. There will be no need for probate or probate court.

Say a person’s estate consists mainly of their primary residence, and the person wants their property to pass to their children or grandchildren. In such a situation, a standard life estate deed may be a perfectly good idea. It is cheap and quick.

Upon the death of the life estate holder, the beneficiaries get the property by operation of law.

Medicaid Planning

Since a life estate property passes to the remainder beneficiaries by operation of law, it is not part of the original owner’s probate estate. Therefore, the property subject to life estate will not be available for Medicaid estate recovery.

Therefore, some type of life estate deed may be a good tool for Medicaid planning for non-homestead property.

Please do note that the life estate owner still owns the property during their lifetime. Therefore, a life estate deed will not help a person with Medicaid eligibility.

Medicaid planning is very complicated. If you want to include Medicaid planning as part of your estate plan, then you should consult with a Florida elder law attorney.

What is the problem with a life estate?

Some of the problems with a traditional life estate are loss of control, uncertainty with remainder beneficiaries, and the inability to change beneficiaries.

Loss of control with a life estate

Once an owner executes a Florida life estate deed, the beneficiaries have a type of ownership interest in the property. These remaindermen have the right to expect that they will inherit that property.

This means that the life estate owner no longer has full power to sell the property. If the owner sells the property, then the remainderman have nothing to inherit. Therefore, the life estate tenant no longer has the legal right to sell the property without the consent of the remainderman.

Not only do the remaindermen have a right to inherit the property, but they have a right to inherit the same interest in the property that the original owner had when they executed the life estate deed.

This means that the life tenant cannot mortgage the property without the consent of the remainderman. This might not be a big deal, unless of course the property might need some unexpected, extraordinary repairs. However, if you need a second mortgage to re-roof the house or to re-build the seawall, you will need the remainderman’s consent.

Uncertainty with Remainder Beneficiaries

A life estate deed names the remainder beneficiaries. So an owner might execute a deed where they retain the life estate, and name their two children as the remainder beneficiaries.

But what happens if one of their children dies young, leaving a surviving spouse and some minor children behind? Well in such a case, the owner’s grandchildren would become the remainder beneficiaries.

If the grandchildren are minors, then their surviving parent would effectively receive the property. This may be okay, but few people intend to leave their property to their son or daughter-in-law.

Furthermore, if one of the remainder beneficiaries were to die before the life tenant, then the property would have to go through probate. This would be necessary to ensure that the deceased beneficiary’s interest gets passed down to the rightful heirs. Therefore, one of the main benefits of a life estate, avoiding probate, would be lost.

Inability to Change Remainder Beneficiaries

Perhaps the greatest potential problem of a life estate in Florida, is the inability to change the remainder beneficiaries. A regular life estate deed is irrevocable. You cannot revoke or change it after recording it with the county.

On the surface, this might not be a problem for a person that wants their children to be the remainder beneficiaries. Especially if those children are responsible.

But what if one of the children develops a drug, alcohol, or gambling problem? Do you really want them to inherit a portion of a house, and then blow the proceeds on dope? Probably not.

However, there is an even more unfortunate possible scenario. What if one of the beneficiaries is in an accident, becomes disabled, and gets on Medicaid? When they receive their remainder interest, they will get disqualified from Medicaid. Then they would have to spend all of their inheritance on medical care before they could re-qualify for Medicaid.

What is a Better Solution?

The main benefits of a life estate are avoiding probate and passing your property to beneficiaries quickly and inexpensively. You can also accomplish these goals with a different type of deed, or perhaps a revocable trust.

Florida Enhanced Life Estate Deed or Lady-Bird Deed

A good alternative to a regular life estate deed is a Florida enhanced life estate deed. This type of deed is often called a Lady Bird Deed. It is named after Lady Bird Johnson.

A Lady Bird deed also creates a life estate, but it is an enhanced life estate. The main advantages of a Lady Bird Deed over a regular life estate deed are:

  1. The property passes to the remainder beneficiaries by operation of law
  2. The life tenant does not need anyone’s permission sell, mortgage or give away the property during their lifetime,
  3. The life tenant can change the remainder beneficiaries.

Property Passes By Operation of Law

When the life tenant dies, the remainder beneficiaries receive the property by operation of law. Therefore, there is no probate, no need for probate lawyers or courts.

This is similar to a pay on death, or transfer on death, designation on a bank account. When the account holder dies, then the POD or TOD beneficiary just presents the death certificate, and they receive the funds.

Some states, like Wyoming, allow transfer on death deeds. Florida statutes do not.

Fortunately a Florida enhanced life estate deed works much the same way a TOD deed. Upon the owner’s death, the property transfers directly to the remainder beneficiaries. All you will need is an affidavit and a death certificate.

Grantor (Life Tenant) Retains Full Control Over Property

The main advantage of an enhanced life estate over a regular life estate is that the original property owner retains control.

The grantor of the enhanced life estate has an unrestricted right to sell, convey, give away, mortgage, lease or otherwise dispose of any or all interest in the property, during their lifetime.

The grantor does not need the remainder beneficiary’s permission to do any of this. Furthermore, the grantor does not need to share any of the sale proceeds with the beneficiary.

Grantor Can Change Beneficiary

The grantor of the enhanced life estate can easily change the beneficiary. All he has to do is execute another enhanced life estate deed. The new deed conveys the property to himself, and names new remainder beneficiaries.

Revocable Living Trust vs Enhanced Life Estate Deed

A revocable living trust (RLT) will also transfer property outside of probate. An RLT also allows to property owner to retain full control of the property, and allows the owner to change the beneficiaries at will.

A revocable trust will also allow a property owner to lots of other things with their property. However, it is more expensive to set up, and it requires ongoing attention.

If the bulk of a person’s property consists of real estate, then use of an enhanced life estate deed may a better solution.

Life-estate deeds can be found for free from many legal forms providers. Some government agencies also provide forms. For example the Palm Beach County Clerk has an Enhanced Life Estate – Lady Bird Deed form available to view and download.

Executor vs Administrator: What is the Difference?

There is one main difference between an executor vs an administrator. A person is named executor in someone’s will, while a probate court appoints someone as the estate administrator.

Whether someone is the executor of a will or the administrator of an estate, their duty is the same. They both act as the personal representative of the decedent in shepherding the deceased person’s estate through the probate process.

The Appointment of an Executor vs Administrator

Most persons’ last will and testament names someone as executor. The probate court will almost always appoint the named person as executor. If that person cannot serve, then the court will appoint the alternate executor named in the will.

If neither the person named executor or alternate executor are willing and able to serve, then the probate court cannot appoint anyone as executor of a will.

When a person dies without a valid will, the probate court has to appoint an administrator of the estate. This also the case when a will does not name an executor, or if the named executors cannot serve. Therefore, it is always a good idea to name at least one executor, and one or two alternate executors, in your own will.

Executor vs Administrator: Who can be appointed?

Who can be an executor?

A person can generally name anyone they please as their executor. They can name a family member, or a girlfriend, boyfriend, partner or trusted advisor. Most anyone is eligible to be named as an executor.

Who can be an administrator?

State law governs and restricts the appointment of an administrator. These laws list the preference for administrators. If more than one person wants to be the administrator, the court is likely to follow the preferences. The order of preference is generally as follows:

  1. Surviving spouse,
  2. Children,
  3. Father or Mother,
  4. Brothers or Sisters,
  5. Grandchildren,
  6. Other family members who are intestate heirs, and
  7. Creditors of the decedent, or
  8. Some other interested party.

State probate law also may restrict administrators to residents of the state.

Your preference may be different than the state’s. Maybe you have you have a partner, but the two of you are not married.

Perhaps you would rather have your CPA sister as your personal representative, but she lives out of state.

In those situations you should name an executor of your choice, and a successor executor as well. You do this in your will, as part of your estate planning process.

Key Differences Between Executors vs Administrators

The probate court issues Letters Testamentary to an executor, and appoints an administrator by the grant of Letters of Administration.

An executor distributes the estate assets according to the terms of the will.

An administrator distributes the decedent’s estate according to the laws of intestacy (unless he is an administrator with the will annexed).

Executors can live anywhere, but administrators generally must be residents of the state of the probate proceeding.

Executors can serve without a bond, if the will so specifies. Administrators will generally need to post a fiduciary bond. This is to protect the heirs from a poorly done administrator’s job.

Executors vs Administrators: the Similarities

The role of an executor and the duties of an administrator are similar. They are both charged with the administration of an estate.

Fiduciary duties

They both have a fiduciary duty to the beneficiaries and/or heirs of the deceased individual. This means that everything they do must be done with the best interests of the beneficiaries in mind.

Officers of the Court

Executors and administrators are also officers of the Court. They derive their power from the Court. In order to get this power, and they must file an oath with the Court, promising to carry out their duties according to law.

Same probate process

Executors and administrators have to follow the same estate administration process. They have to:

  • file the decedent’s will with the probate court
  • notify the beneficiaries and heirs of the death
  • give notice to known creditors of the estate
  • publish notice to unknown creditors
  • identify and collect the assets of the estate
  • make an inventory of the estate
  • get an appraisal of the estate’s assets
  • pay the debts of the estate
  • prepare the decedent’s and the estate’s tax returns
  • maintain and perhaps sell the estate’s real estate
  • take care of and/or sell the estate’s personal property
  • distribute the remaining assets to the beneficiaries, and
  • to do all this as quickly as reasonably possible

Both Executors and Administrations have to do other things on behalf of the estate. They have to prepare all the legal documents that are necessary for the administration of the estate.

Simple Estate vs Complex Estate

Some estates are simple, and others can be complex and time consuming.

A simple estate may consist of a vehicle, a couple of bank accounts, and some furnishings.

A complex estate may have a house, a vacation home in another state, an ownership share in a business, a herd of livestock, a collections of classic motorcycles, and a couple of dozen firearms.

The more complex estates may require the help of other professionals, such as accountants, financial advisors, stock brokers, real estate brokers, appraisers, etc.

The probate laws allow executors and administrators to hire such professionals. If the provisions of the will allow, then executors can do this without a court order. Administrators have to ask permission from the court. However, a court will almost always grant permission, as long as the professionals’ fees are commercially reasonable.

Depending on the size and complexity of the estate, an executor or administrator may also choose to hire a law firm to assist him or her. Probate attorneys can provide the legal advice that give most every administrator or executor of an estate quite a bit of peace of mind.

Compensation Executors and Administrators

Finally, both executors and administrators are entitled to reasonable compensation for their services. The compensation is usually in the form of a commission, which is a percentage of the appraised value of the estate.

Executor vs Administrator FAQ

What is the difference between an Executor vs Administrator?

An executor is named in a will, while an administrator is selected by the probate court.

Which is better, Executor vs Administrator?

Neither is better, because they both have to do the same work.

Does an executor or administrator have to accept the appointment?

No. A person named executor of a will can decline the appointment. A person entitled to be an administrator can also decline to act. Finally, both executors and administrators can resign their appointment, if they are no longer willing or able to serve.

Who can be an executor vs who can be an administrator?

Anyone named in a will can be an executor. Only a person approved by the court can be an administrator.

Can I make myself the executor of a family member’s estate?

No. Only a person named in the will can be an executor. However, if a close family member died without a will, you may ask the court to appoint you as the administrator.

Does an executor vs administrator get to distribute the estate as they think is best?

No. An executor distributes the assets according to the terms of a will. An administrator distributes assets according to the state’s laws of intestate succession.

Do executors and administrators get paid?

Yes. Executors and administrators are entitled to compensation. The fees for administrators are set by state law. These fees are the same for executors, unless the will provides otherwise. In either case, the court must approve the fees prior to payment.

Executor vs Administrator: When is neither needed?

Most states have some some simplified probate process when a deceased person’s estate meets certain criteria. These rarely apply to a large estate, because the criteria is generally the value of the estate. Therefore, they may not apply to even a simple estate, if it is valuable enough.

The two more common process are probate by affidavit and probate by summary distribution.

Probate by Affidavit

Probate by affidavit generally only applies when the estate of a decedent contains only personal property. This would be cars, bank accounts, and things like that. Furthermore, the property would have to be valued at less than a certain amount. As an example, in Wyoming, the value of the property must be less than $200,000.00.

A probate by affidavit, or similar procedure, often does not require any court filing or involvement. Therefore, there is no need to appoint an executor or a personal representative

However, when the assets of an estate include real property, some sort court involvement is almost always necessary. This is because every state has a compelling interest in keeping title to real property clear.

Pro Tip – Just because a person owned real property when they died, does not mean that the decedent’s estate includes that property. If the property was owned in joint tenancy, the property would have passed to the other owners by operation of law. In addition, the property could be subject to a Ladybird Deed or a Transfer on Death Deed. Those deeds would also take the property out of a probate estate.

Summary Distribution

If the value of the estate is lower than a certain threshold, than a form of Summary Distribution may be appropriate.

These summary distribution proceedings are not formal probates, and the probate court does not appoint an executor or an administrator. They provide some notice to creditors so that the liabilities of the estate of the deceased can be paid, and then decedent’s assets are distributed according to a court order.

Summary of Executor vs Administrator differences

The biggest difference between the two is that an executor is named in the will of a deceased person, while a court chooses an administrator.

Another important difference is that anyone can named as an executor, but state law controls who is appointed as an administrator.

Otherwise, there is not much difference between an executor vs administrator.

They both have to distribute a deceased person’s estate. Regardless of the size of the estate, they both act under the supervision of special courts, which are called probate courts.

By Steve Harton, an estate planning and probate attorney licensed in Florida, Utah and Wyoming. Steve serves clients in all three states from his office in Rock Springs, Wyoming. If you need some legal advice about probate, please schedule a consultation!