The Search for The Lady Bird Deed by Kary C. Frank
A number of years ago a friend, who had moved to Florida, and I were discussing his estate plan and he told me how his Florida attorney had used a ladybird deed as a component in his planning. Being unfamiliar with the term, I did some research to determine what exactly is a ladybird deed. I found, as we know now that the more formal term for a ladybird deed was an enhanced life estate deed. For purposes of the article an enhanced life estate deed or ladybird deed is loosely described as a conveyance of real property, reserving a life estate and the power to sell, mortgage, etc. In Michigan there is Standard 9.3 of the Michigan Title Standards (6th ed), which is on point and sanctions the ladybird transfer.
Because I saw the value of this type of deed, I created a few alternative models for my personal form bank. I also sent the one of the first enhanced life estate/ladybird deeds to the Michigan Institute of Continuing Legal Education (ICLE) for its form bank. Certainly there were a number of lawyers who were familiar with the ladybird deed, but it was not in general use in Michigan. Since then there have been numerous articles and seminar presentations on ladybird deeds and their usefulness. But this is not a commentary on the usefulness of the ladybird deed.
It seems that, at least in everyday lawyer terminology, "ladybird deed" has been progressively replacing the nomenclature of enhanced life estate, or as Land Title Standard 9.3 title's it: Life Estate with Power to Convey Fee(n1). You only have to look at the title of past seminars on the subject.(n2) Even a couple of Michigan Court cases reinforce this point.
See the 2013 Michigan Tax Tribunal decision, Anderson v Township of Chocolay, where the court discussing a pertinent 2009 conveyance stated, "The 2009 instrument is commonly referred to as a “Lady Bird” deed."(n3). The statement was noted with the following footnote: "The name comes from the mechanism that President Lyndon Johnson used to pass property to his wife, “Lady Bird” Johnson on his death. Some lawyers call these “enhanced life estate” deeds."(n4)
Also see “In re Tobias Estate”, an unpublished Court of Appeals case decided May 10, 2012, which reviews the requirements of a Ladybird Deed. In that case the court states, “A ‘Ladybird Deed’ is a nickname for an enhanced life estate deed. It is named after Lady Bird Johnson because allegedly President Johnson once used this type of deed to convey some land to Lady Bird. …"(n5).
Even before reading the preceding cases, I thought it would be interesting to find the first ladybird deed and have it published in the State Bar Journal or one of the appropriate section journals as a historical document. After all, it was a somewhat clever real estate transaction document, created by a former President of the United States.
I started the search by contacting the Lyndon B. Johnson Library. I was transferred to Claudia Anderson, the supervisory archivist of the library, who informed me that she had never heard of a ladybird deed. While explaining to her the relationship of this type of deed to the former president, she was googling the term. She said the search approached 100,000 hits. Our discussion and the search results advanced her interest and she volunteered to see what she could find and get back with me.
After a few months Ms. Anderson contacted me and said that she talked to members of the family and with the financial administrators of Mrs. Johnson's estate. No one was aware of the term ladybird deed. She was unable to find any information on land transfers that would have used a ladybird deed. Although she thought that there had been life estate transfers from Ladybird Johnson to the United States Park Service involving a portion of the Johnson Ranch. These transfers would have been in Gillespie and Blanco Counties.
I next contacted title companies in the counties where the Johnson Ranch is located, looking for title search help. The first examiner I worked with was Sharon Jung, Manager of Fredericksburg Titles, Fredericksburg, Texas. She seemed quite interested in finding the first ladybird deed.
After some searching she found a deed from Claudia (Lady Bird) Johnson and her daughters to the United States of America, reserving a life estate in the grantors. I thought it might be the deed I was looking for. Ms. Jung emailed me a copy of the deed; but after review, I found that, although it was a life estate deed, it did not reserve the power to sell (which is a key component of the ladybird deed). Although I offered to pay her for title-examination time, I think Ms. Jung felt she had devoted enough time searching for the first ladybird deed.
So, I contacted Linda McMain at Guardian Title with offices in Blanco and Johnson City asking for her assistance. She was familiar with the life estate deeds that the former first lady had signed. During the conversation she related that she seemed to remember reading that the ladybird deed had nothing to do with Lady Bird Johnson. And, if she could remember the source, she would let me know.
Within a couple of weeks she emailed me an article from the Estate Planning Developments for Texas Professionals. The January 2011 article written by Gerry W. Beyer, Professor of Law at Texas Tech University School of Law and Kerri M. Griffin Comment Editor Estate Planning and Community Property Law Journal Texas Tech University School of Law was an introductory article about the usefulness of ladybird deeds.
In the article, before addressing the reasons for using ladybird deeds the authors gave the following background information about the ladybird deed.
Many people think that the “Lady Bird” deed became known as such because President Johnson once used this type of deed to transfer property to his wife, “Lady Bird” Johnson. In reality, the first Lady Bird deed was drafted by Florida attorney Jerome Ira Solkoff around 1982, nearly ten years after the death of President Johnson. In his elder law book and lecture materials, Solkoff used a fictitious cast of characters with the names Linton, Lady Bird, Lucie, and Lynda in examples explaining the usefulness of this new type of deed, and the names became associated with the deed. Jerome’s son, Scott Solkoff, jokes that the Lady Bird deed “could easily have become known as the ‘Genghis Khan deed.’”(n6)
Of course I did contact Prof. Beyer, who confirmed the article. Using WestlawNext, he also emailed me the following section from the 2014-2015 edition of West's Florida Practice Series, Elder Law with Jerome Ira Solkoff, Esq. and Scott M. Solkoff, Esq. authoring Chapter 9: Titling Assets to Avoid Probate and Joint Ownership of Realty.
§ 9:53. “Lady Bird” life estate deeds—Life estate deed to convey future title to heirs One could convey future title to the heirs by deed, keeping control of the property. The remaindermen obtain title immediately upon the death of the life estate owner without surrogate court proceedings. This form of deed has been popularly labeled the “Lady Bird” deed due to author Jerome Ira Solkoff's writings and lectures using a fictitious cast of characters to illustrate the facility of the deed form. Author Jerome Ira Solkoff created the “Lady Bird” deed form in 1982 and it is now in common use in Florida and throughout the United States. Example: Lyndon and Lady Bird, his wife, grantors, to Lyndon and Lady Bird, his wife, grantees, a life estate, without any liability for waste, with full power and authority in them to sell, convey, mortgage, lease and otherwise dispose of the property described below in fee simple, with or without consideration and without joinder by the remaindermen, and to keep absolutely any and all proceeds derived therefrom. Further, the grantors reserve the right to change remaindermen at any time without consent of remaindermen. Upon death of the life tenants, title shall be in Lucy and Lynda, joint tenants with rights of survivorship.(n7)
Obviously, Professor Beyer was very helpful. Without his article, who knows if I would have come across Jerome Solkoff.
I then attempted to contact Jerome Solkoff who is now retired and was unavailable. I did eventually talk with, Scott Solkoff, who has a Florida estate planning and elder law practice and is now co-author of the current edition of the Elder Law portion of West's Florida Practice Series.
Scott informed me that the term "ladybird deed" was essentially an unintended outgrowth of his father Jerome's educational endeavors. Jerome was an estate planning and elder law attorney in Florida. Around 1992, he authored the first edition of the Elder Law portion of West's Florida Practice Series. In an effort to keep the Florida practitioners somewhat entertained while presenting the concepts of the enhanced life estate deed, he used a cast of characters including Lyndon Johnson and Lady Bird Johnson as grantors, grantees, etc.
A few days after I talked to Scott, Jerome Solkoff did call me and reiterated the story. He also said that around 1982 he had contacted three Florida title companies and presented the enhanced life estate type of transfer for approval by the title companies. Later when asked by West Publishing to provide examples of such a transfer in the first edition of the Elder Law book, he came up with the characters as illustrations. As he remembers, the Medicaid example he first used was Ozzie and Harriet as grantors with David and Ricky as remaindermen.(n8) So from that publication the term "ladybird deed" began. And as far as Claudia T. Johnson, Luci Baines Johnson and Lynda Bird Johnson Robb having used a life estate deed to transfer property to the United States Park Services, it is pure coincidence.
In the 1962 John Ford film, The Man Who Shot Liberty Valance, Ransom Stoddard (the man who everyone thought shot Liberty and who built a career on that reputation) tells a young reporter the true story of who shot Liberty Valance. At the end, the young reporter looked at the editor of the paper (who had also been listening to the story) in anticipation. The editor took the transcript and ripped it in pieces, saying, “When you have a choice of printing the truth or the legend – print the legend”.
So, when a client is signing a “ladybird deed” and they ask how the deed got the unusual name, you can say, "the legend is that President Johnson drafted the first ladybird deed".
copyright 2015 by Kary C. Frank
Copy archived in the "Reference File" at the LBJ Presidential Library, Austin, Texas, by the supervisory archivist (2015).
_________________________________________________ Endnotes: 1. Standard 9.3 of the Michigan Title Standards (6th ed) 2. Drafting Ladybird Deeds (State Bar of Michigan, 9th Annual Solo & Small Firm Institute, September 20, 2012) Contributor: Douglas G. Chalgian, and Drafting Ladybird Deeds (ICLE, Drafting Estate Planning Documents, 17th Annual, 01/24/08) Contributor: Harley D. Manela. 3. Anderson v Township of Chocolay, unpublished, MTT No. 433005 (Dec. 18, 2013) (Hon. Paul V. McCord), page 6. 4. Anderson, supra, page 6 n 3. 5. In re Tobias Estate, unpublished, Court of Appeals No. 304852, May 10, 2012, page 5. 6. Gerry W. Beyer & Kerri M. Griffin, Lady Bird Deeds: A Primer for the Texas Practitioner, Est. Plan. Devel. for Tex. Prof. , Jan. 2011, at 1 available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1736862 7. 14 Fla. Prac., Elder Law § 9:53 (2014-2015 ed.) 8. Characters from The Adventures of Ozzie and Harriet, family sitcom 1952-1966.
Kary C. Frank practices law in Rockford and Big Rapids, Michigan. He is a member of the real estate and probate sections of the State Bar. He is on the ICLE real property board of advisers. Mr. Frank is a contributor to the ICLE form bank and how to kits. He has served as a moderator for the State Bar convention and has been published in The Sporting News.