Florida Deed Preparation: What Has to Be Right, and What It Costs You If It Is Not
You are allowed to prepare your own deed in Florida. Nothing stops a person from drafting a deed to their own property. The question worth asking is not whether you may, but what happens if a detail is wrong, because a defective deed usually does not announce itself. It sits quietly in the county records until someone tries to sell, refinance or settle an estate, and by then the person who could have fixed it may have died.
This page sets out what Florida actually requires for a deed to be valid, what the clerk requires before it can be recorded, the homestead rule that catches more do-it-yourself deeds than any other, and the tax that arrives uninvited when a mortgaged house changes hands. Every requirement below is tied to the statute or constitutional provision that sets it.
Preparing your own deed, and who else is allowed to prepare one
Two different questions get blended here, so take them separately.
Preparing a deed for yourself is not the unlicensed practice of law. A person may always act on their own behalf.
Preparing a deed for someone else is a different matter. Section 454.23, Florida Statutes, provides that a person not licensed to practice law in Florida who practices law in this state, or holds himself or herself out as qualified to do so, commits a felony of the third degree. Chapter 454 does not define the practice of law; in Florida that definition comes from the Supreme Court of Florida. The practical point for a property owner is narrower and more useful: if a notary, a form service, a real estate agent or an online vendor prepares your deed and it is wrong, there is no malpractice carrier behind it and no one under an obligation to fix it.
So the real decision is not legal permission. It is whether the transfer you have in mind carries any of the traps below.
What Florida requires for a deed to be valid
Two subscribing witnesses
Section 689.01(1) requires that a conveyance of a freehold interest, or an interest for a term of more than one year, be made by a written instrument signed in the presence of two subscribing witnesses by the party making the conveyance. Florida is one of a small number of states that still requires witnesses on a deed at all, and it is the requirement that out-of-state form packages most often miss. Leases of real property are expressly carved out and need no subscribing witnesses.
One correction worth making, because it circulates widely: section 689.01 does not require the witnesses to sign in the presence of each other. The statute requires the grantor to sign in the presence of two subscribing witnesses. The mutual-presence rule people are thinking of belongs to the execution of wills under section 732.502, which is a different statute with different consequences.
Notarization is about recording, not validity
This distinction is conflated more than any other in this area, and getting it right is genuinely useful.
Section 689.01 says nothing about notarization. What it requires is a writing, the grantor’s signature, and two subscribing witnesses. A properly witnessed deed that was delivered and accepted can pass title between the grantor and the grantee even though it was never notarized.
Notarization belongs to a different statute. Section 695.03 provides that to entitle any instrument concerning real property to be recorded, its execution must be acknowledged by the party executing it, proved by a subscribing witness, or otherwise legalized or authenticated. Within Florida that means before a judge, a clerk or deputy clerk, a United States commissioner or magistrate, a notary public, or a civil-law notary, under seal.
So the sentence “a deed must be notarized to be valid in Florida” is not accurate. Notarization is what makes a deed recordable. That said, an unrecorded deed is close to a practical disaster even when technically valid, because recording is what gives priority and constructive notice against everyone else. The distinction matters most when a family finds an old unrecorded deed in a drawer and assumes it is worthless. It may not be.
Remote and electronic witnessing
Section 689.01(2), added in 2020, allows the two-witness requirement to be satisfied by witnesses who are present and electronically signing by means of audio-video communication technology as defined in section 117.201. Under section 689.01(2)(b), the requirement is met if the witness is either in the physical presence of the principal or present through audio-video technology when the principal signs, and the witness hears the principal acknowledge having signed.
Section 689.01(3) then protects instruments witnessed that way from constructive-notice challenges based on imperfect compliance, while expressly preserving challenges founded on fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality or unconscionability.
What the clerk requires before a deed can be recorded
Section 695.26(1) sets out what must appear on the face of an instrument before the clerk may record it. Each item is small, and any one of them can get a deed rejected at the counter or recorded in a form that causes trouble later.
| Requirement | Where it goes |
|---|---|
| Name of each person who executed the instrument, legibly printed, typewritten or stamped | Immediately beneath that person’s signature, with the post office address |
| Name and post office address of the natural person who prepared it, or under whose supervision it was prepared | The “prepared by” block |
| Name of each witness, legibly printed, typewritten or stamped | Immediately beneath that witness’s signature, with the post office address |
| Name of the notary public or other officer taking the acknowledgment | Legibly printed, typewritten or stamped |
| Blank space reserved for the clerk | Three inches by three inches at the top right of the first page, one inch by three inches at the top right of each later page |
| Name and post office address of each grantee | Required for any instrument other than a mortgage |
Section 695.26(2) gives the clerk discretion to accept an instrument where a name or address sits somewhere other than the required position, if the connection between signature, name and address is apparent. The exceptions to subsection (1) are in section 695.26(3), not in subsection (2) as is often written: instruments executed before 1 July 1991, court decrees and orders, instruments executed or acknowledged outside Florida, wills, plats, and instruments prepared or executed by a public officer other than a notary. Section 695.26(4) provides that a clerk’s own failure to comply does not impair the validity or constructive notice of what was recorded.
The homestead rule that defeats more deeds than any other
If the property is homestead and the owner is married, this is the provision that matters most.
Article X, section 4(c) of the Florida Constitution provides:
The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.
Two separate restrictions that get merged
Read the two sentences apart, because they do different jobs and a great deal of published material runs them together.
The devise restriction, in the first sentence, is triggered by a surviving spouse or a minor child.
The alienation restriction, in the second sentence, governs conveying homestead during life by mortgage, sale or gift, and it requires only the spouse’s joinder. Minor children are not mentioned in the alienation clause at all. The widely repeated claim that a Florida homeowner cannot sell or mortgage a homestead while they have minor children is not what the constitution says.
The spouse must join even when the spouse is not on the deed
The constitutional trigger is the phrase “joined by the spouse if married.” The requirement attaches to the owner being married, not to how title is held. A married person whose name is the only name on the deed still needs the spouse to join in order to alienate homestead.
And because the clause says “mortgage, sale or gift” without naming a transferee, it does not distinguish between a stranger, an adult child and a trustee. A gift deed of homestead to a child, and a deed of homestead into the owner’s own revocable trust, are both alienations. A deed of homestead that should have carried a spousal joinder and does not is exposed to challenge, and the constitution frames the joinder as a limit on the owner’s power to alienate rather than as a formality. The precise consequence is a matter for the courts and turns on the facts.
Two statutes sit alongside the constitutional rule. Section 689.11(1) provides that a conveyance of real estate including homestead made by one spouse to the other conveys legal title to the grantee spouse in all cases where it would be effective if the parties were not married, and that the grantee spouse need not execute the conveyance. Section 689.111 addresses conveyances of homestead made under a power of attorney.
Devise and lifetime transfer are different questions
Section 732.4015 restates the constitutional devise restriction and extends it into trusts, defining “owner” to include the grantor of a trust described in section 733.707(3), and defining “devise” to include a disposition by trust of the portion of the trust estate that would be homestead if titled in the grantor’s name.
Section 732.4017 is the counterweight. An inter vivos transfer of homestead, including a transfer in trust, is not a devise if the owner does not retain the power to revoke or revest the interest in the owner.
Keep those apart. Section 732.4017 answers the devise question. It does not waive the Article X, section 4(c) joinder requirement for the lifetime deed itself. A married person deeding homestead into an irrevocable trust still needs the spouse to join, even though the transfer is not a devise.
Documentary stamp tax, and the mortgage surprise
This is where do-it-yourself transfers most often produce an unexpected bill.
Section 201.02(1)(a) taxes deeds and other instruments conveying an interest in real property at 70 cents on each $100 of the consideration. The definition of consideration is where the trouble sits. It includes money paid or agreed to be paid, the discharge of an obligation, and the amount of any mortgage or other encumbrance, whether or not the underlying indebtedness is assumed.
So a parent who signs a quitclaim deed transferring a mortgaged house to a child for love and affection has made a transfer for consideration equal to the outstanding mortgage balance, and tax is owed on that balance even though no money changed hands. Because the rate applies to each $100 or portion of it, a nominal-consideration deed on unencumbered property rounds up to a floor of 70 cents.
| Situation | Documentary stamp tax | Authority |
|---|---|---|
| Deed anywhere in Florida except Miami-Dade | 70 cents per $100 of consideration | § 201.02(1)(a) |
| Deed in Miami-Dade, single-family residence | 60 cents per $100, and no surtax | § 201.0205; § 201.031 |
| Deed in Miami-Dade, property other than a single-family residence | 60 cents per $100 plus the county surtax | § 201.031 |
| Mortgaged property transferred for no money | Taxable on the outstanding mortgage balance | § 201.02(1)(a) |
| Homestead transferred between spouses, where the only consideration is an existing mortgage or lien | Exempt | § 201.02(7)(b) |
| Homestead transferred from parent to child subject to a mortgage | Fully taxable on the mortgage balance | § 201.02(1)(a) |
Two of those rows deserve emphasis. The Miami-Dade figure is widely published as 60 cents plus a 45-cent surtax, which overstates the tax on exactly the transaction most readers have, because section 201.031 excludes from the surtax any document where the interest conveyed involves only a single-family residence. And the spousal exemption in section 201.02(7)(b) covers homestead transfers from one spouse to another, from one spouse to both, or from both spouses to one, but it is spousal only. It does not reach a parent-to-child transfer.
Which deed does which job
| Deed | What it does | Typical use |
|---|---|---|
| General warranty deed | Conveys title with full covenants of warranty, including against defects arising before the grantor owned it | Arm’s length sales |
| Special warranty deed | Warrants only against defects arising during the grantor’s own ownership | Sales by estates, trusts and institutions |
| Quitclaim deed | Conveys whatever interest the grantor has, with no warranty at all | Transfers between family members, clearing title, adding or removing a name |
| Enhanced life estate deed, commonly called a lady bird deed | Reserves a life estate with retained power to sell, mortgage and divest the remaindermen, with the remainder passing at death | Passing a home outside probate while keeping full control during life |
| Life estate deed | Reserves a life estate without the retained power to sell or divest | Rarely the right tool once an enhanced life estate deed is available |
| Personal representative’s deed | Conveys estate real property under the authority of letters of administration | Selling or distributing a decedent’s Florida real estate |
The lady bird deed, and the deed Florida does not have
No statute creates it
This is worth saying plainly, because a great deal of published material implies otherwise. No Florida statute creates, authorizes or defines an enhanced life estate deed. Chapter 689, which governs conveyances of land, contains no such section, and neither does Chapter 732 or Chapter 736. The instrument is a creature of practice, assembled from ordinary life estate and remainder principles together with a broad reserved power to sell, convey, mortgage and divest the remaindermen, and it is recognised administratively rather than created by legislation. That does not make it unsound. It does mean the drafting carries the entire weight.
Florida has no transfer on death deed
People look for this constantly, and the honest answer is that it does not exist here. Florida did not adopt the Uniform Real Property Transfer on Death Act, and Chapter 689 contains no transfer-on-death deed provision. The statute with the similar name, Chapter 711, is the Florida Uniform Transfer-on-Death Security Registration Act, and it applies to securities. It is built around a registering entity such as a broker or transfer agent, and there is no registering entity for a parcel of land.
Florida does allow beneficiary designations on motor vehicle titles and on bank accounts, which is part of why people reasonably assume real estate works the same way. It does not. The enhanced life estate deed is the instrument Florida practitioners use to fill that gap.
Documentary stamp tax on an enhanced life estate deed
The Florida Department of Revenue has addressed this in a published technical assistance advisement. On facts involving grantors who deeded property to their three daughters as remaindermen while reserving a life estate with broad retained powers to grant, sell, convey, mortgage, encumber and lease, and to divest the remaindermen, the Department advised that no documentary stamp tax was due, because the deed transferred no present beneficial interest and the remainder interests were contingent on the life tenants’ deaths.
Two caveats belong with that. A technical assistance advisement binds the Department only as to the taxpayer who requested it and the facts presented, so it is guidance rather than a rule of general application. And it did not address property encumbered by a mortgage, which matters given how broadly section 201.02 defines consideration. That combination should not be assumed either way without looking at it.
Homestead exemption
Section 193.155(3) governs when homestead is reassessed at just value on a change of ownership, and lists exceptions including where the same person continues to be entitled to the exemption. Nothing in that section mentions enhanced life estate deeds by name. The result most owners expect, that the exemption and the Save Our Homes cap survive because the life tenant keeps the beneficial interest and remains the person entitled to the exemption, follows from that exception rather than from any provision written for this instrument. Homestead exemption administration is handled county by county by the property appraiser, so it is worth confirming locally rather than assuming.
Deeds that come out of an estate
When a Florida property owner dies, the deed that moves the property is usually a personal representative’s deed, signed under the authority of letters of administration issued by the probate court. It cannot be signed until someone holds that authority, which is the step families most often try to skip.
Two situations come up constantly. Where the owner lived in another state and owned Florida real estate, the Florida authority comes through ancillary administration. Where the estate is modest, the order of summary administration itself determines who takes the property and is recorded in the county records. Our guides to the Florida probate process and ancillary probate for non-residents cover the sequence, and selling a house during probate covers the sale itself.
Where a Florida deed is recorded
Deeds are recorded in the official records of the county where the property sits. In most counties that is the clerk of the circuit court. In Orange County it is a separate office, the Orange County Comptroller, which catches people who assume the clerk handles it. Recording charges are set by statute and are charged per page, with an additional charge for indexing more than a set number of names.
Lorenzo Law prepares deeds for property across Florida, including Miami-Dade and Broward, Orange and Osceola, and Seminole County including Altamonte Springs and Lake Mary, in English and Spanish.
What is needed to prepare a Florida deed
| Item | Why it is needed |
|---|---|
| A copy of the current recorded deed | Supplies the legal description and confirms how title is presently held |
| Full legal names of everyone giving and receiving the interest | Section 695.26(1) requires names printed beneath signatures, and grantee names and addresses |
| Marital status of every person conveying | Determines whether spousal joinder is constitutionally required |
| Whether the property is homestead | Drives the joinder question, the exemption question and part of the tax analysis |
| Whether there is a mortgage, and its approximate balance | Determines documentary stamp tax and raises the due-on-sale question |
| The parcel identification number and the county | Determines where it records and confirms the description |
| What the transfer is meant to accomplish | Decides which of the six deeds above is the right instrument |
Talking to Lorenzo Law about a Florida deed
If you are weighing whether to prepare a deed yourself, the useful question is not whether you are permitted to. It is whether your transfer involves homestead, a spouse, a mortgage, a child, a trust or a death, because those are the facts that turn a one-page document into a problem that surfaces years later.
To talk through a Florida deed, get in touch or call 305-224-6811. Related reading: types of deeds in Florida, Florida quit claim deeds, lady bird deeds in Florida, and lady bird deed tax consequences.
Frequently asked questions about Florida deed preparation
Can I prepare my own deed in Florida?
Yes. Preparing a deed to your own property is not the unlicensed practice of law, because a person may always act on their own behalf. The risk is not permission, it is accuracy. A deed that fails the two-witness requirement in section 689.01, omits what section 695.26 requires on its face, or misses a constitutionally required spousal joinder on homestead may not do what you intended, and the problem usually surfaces years later when someone tries to sell or settle an estate.
Do I need a lawyer for a lady bird deed?
Florida law does not require one. It is worth knowing what you are taking on. No Florida statute creates the enhanced life estate deed, so the instrument depends entirely on how the reserved powers and the remainder are drafted. If the property is homestead and the owner is married, Article X, section 4(c) of the Florida Constitution requires the spouse to join. If the property is mortgaged, the documentary stamp treatment is not settled.
Does a deed have to be notarized in Florida to be valid?
No, and this is the most commonly misstated rule in the area. Section 689.01 requires a writing signed by the grantor in the presence of two subscribing witnesses, and says nothing about notarization. Acknowledgment before a notary or other authorized officer is what section 695.03 requires to make a deed recordable. An unrecorded deed can still pass title between the parties, though leaving one unrecorded is a serious practical risk.
How many witnesses does a Florida deed need?
Two. Section 689.01(1) requires the grantor to sign in the presence of two subscribing witnesses for any conveyance of a freehold interest or an interest for more than one year. Leases are excepted. Note that the statute does not require the two witnesses to sign in each other’s presence. That rule applies to the execution of wills under section 732.502 and is often imported into deed guidance by mistake.
Does my spouse have to sign if the house is only in my name?
If the property is your homestead, yes. Article X, section 4(c) of the Florida Constitution provides that the owner of homestead real estate, joined by the spouse if married, may alienate it by mortgage, sale or gift. The trigger is being married, not whose name appears on the title. A married owner conveying homestead without the spouse joining leaves the deed open to challenge.
Do minor children stop me from selling or mortgaging my Florida homestead?
No, and this is widely stated incorrectly. Article X, section 4(c) contains two separate restrictions. The restriction on devise is triggered by a surviving spouse or a minor child. The restriction on alienation during life, meaning mortgage, sale or gift, requires only the spouse to join and does not mention minor children at all.
Do I owe tax if I add my child to my deed?
Often yes, and it surprises people. Section 201.02(1)(a) taxes deeds at 70 cents per $100 of consideration and defines consideration to include the amount of any mortgage or encumbrance, whether or not the debt is assumed. So transferring a mortgaged home to a child for love and affection produces tax on the outstanding mortgage balance. Homestead transfers between spouses where the only consideration is an existing mortgage are exempt under section 201.02(7)(b), but that exemption is spousal only.
Does Florida have a transfer on death deed?
No. Florida did not adopt the Uniform Real Property Transfer on Death Act, and there is no transfer-on-death deed for real estate in Chapter 689. Chapter 711 has a similar name but governs transfer-on-death registration of securities and requires a registering entity such as a broker, which does not exist for land. The enhanced life estate deed is what Florida practitioners use to accomplish something similar.
Who is allowed to prepare a deed for someone else in Florida?
Section 454.23 makes it a felony of the third degree for a person not licensed to practice law in Florida to practice law in this state. Chapter 454 does not itself define the practice of law; that definition comes from the Supreme Court of Florida. From a property owner’s side the practical concern is different. Where a notary, form vendor or agent prepares a deed and it turns out to be defective, there is no professional responsible for correcting it.
Where is a Florida deed recorded?
In the official records of the county where the property is located. In most Florida counties that is the clerk of the circuit court. Orange County is the notable exception, where recording is handled by the Orange County Comptroller rather than the clerk. Section 695.26 sets out what must appear on the instrument before it can be accepted, including a reserved blank space at the top right of each page for the clerk’s use.
This page is general information about Florida law and is not legal advice for any particular situation. Statutes, constitutional provisions and tax rules change, and documentary stamp tax and homestead exemption questions depend on facts specific to the property and the parties.