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Lady bird deed - Legal doc for conveying property to heirs

Lady bird deed or Enhanced life estate deed is a legal document using which you can transfer property to your heirs while at the same time retaining a life estate along with the right to sell property in your lifetime. This implies that you will own the property till you die and if you'd like to sell, there's no need to notify your beneficiaries. Upon your death, your heirs or beneficiaries named on the deed will be able to take over the property without having to go through probate.

In which states is the deed applicable?

The enhanced life estate deed is acceptable in states like Florida, Texas, Ohio, California, and Kansas.

How does lady bird deed differ from life estate?

There are 2 ways in which an enhanced life estate differs from a regular life estate deed:
  1. Property sale: Unlike a ladybird deed which allows a grantor to sell property during his lifetime without the beneficiaries' consent, a regular life estate deed is one which doesn't allow you to sell without permission.
  2. Gift tax implications: A regular life estate allows the grantor to keep a life estate and transfer a remainder interest (estate that remains after grantor's death) to one who'll inherit property. The current owner has the right to occupy and use property. He is entitled to get all the money that can come from his property. But as per IRS rules, the grantor may have to pay gift taxes for transferring the remainder interest.
    However, the grantor need not pay gift taxes if he uses a ladybird or enhanced life estate deed. This is so because the grantor has the unilateral right to cancel the remainder interest conveyed to the beneficiary.

How does one benefit from using lady bird deeds?

  • Avoid probate: Unlike a Will that requires to be probated, a lady bird deed helps in conveying title without any probate at the time of the grantor's death.
  • Protect from creditors: It protects the property from the beneficiaries' creditors during the grantor's lifetime. The creditors cannot place a lien on the property because the beneficiaries have no interest during the grantor's lifetime.
  • No capital gains tax: The beneficiaries inherit property at a "stepped-up" basis, which is the value of the property on the day when the grantor passes away. If the beneficiary sells home, obviously there will be no capital gains and hence the grantee does not have to pay capital gains tax.
  • Flexible rights: The grantor is legally entitled to sell or transfer property as a gift any time he wishes to do so. He may also take out a mortgage on the property or cancel the remainder interest.

Does ladybird deed affect Medicaid eligibility?

Using ladybird or enhanced life estate deed doesn't make you ineligible for Medicaid as long as you express your "intent to return" after being taken to nursing home. The "intent to return" can be expressed in the form of an affidavit or letter signed by you. Even if you do not express the "intent to return", your home may be considered as an exempt asset for Medicaid eligibility as long as your spouse or relative occupies it when you're not around. Check out if Ladybird deed causes Medicaid penalty.

Which is better - Ladybird deed or quitclaim?

Unlike ladybird deeds, a quitclaim with life estate does not allow the grantor to sell, mortgage or transfer property without the consent of the beneficiaries. The beneficiaries' creditors can easily place a lien on the property as the beneficiaries cannot claim the home as their homestead property. Moreover, if any beneficiary passes away or goes through divorce, his spouse can claim a share of interest in property. In some states, the quit claim or a life estate can even affect the validity of your homestead protection.

Using ladybird deeds make sense if you wish to convey property to your heirs directly without having to prepare a Will. In most cases, it may not affect your Medicaid eligibility. And, the deed offers maximum benefit to your beneficiaries when they take over your property.

I have heard that lady bird deed can be used to avoid probate but not aware of the actual procedure for it. please help

sara's picture
sara | Joined: July 5, 2006 03:16 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi letty,

If your mother's house is sold off before her death, she will lose the long term care benefits. If you have POA on your mother's behalf, then you will be able to transfer your mother's share of the property in your name but your father will have to transfer his share of the property in your name.

Take care

Like | Dislike | Share | Posted: Thu, 02/24/2011 - 01:59

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My mother is moving to a patio home near us. How can we protect her new asset so that in the event she has to go to assited living in the future the government cannot force us to sell the property to satisfy assisted living costs above what medicare provides? Also, can this be done and allow her to also get the homestead exemption for county property taxes?

Like | Dislike | Share | Posted: Wed, 09/08/2010 - 12:55 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Can we fill this ourselves without a lawyer. Who do you fill it with

Like | Dislike | Share | Posted: Tue, 12/14/2010 - 05:58 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Will a Lady bird deed work for me?

Like | Dislike | Share | Posted: Sun, 11/14/2010 - 21:45 | Post subject:

jenkin7's picture
jenkin7 | Joined: June 4, 2007 11:02 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi plumbob,

As far as I know, enhanced life estate deed or a lady bird deed is valid in the state of Michigan. You may find sample copies of lady bird deed used in Michigan. But the verbiage used on the deed varies from one particular situation to another. Thus, you should consult your attorney and get a lady bird deed drafted by him so it suits your particular situation.

Like | Dislike | Share | Posted: Fri, 03/19/2010 - 00:36

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Sussane- Thanks for the reply. I actually missed the second part of my question. I was wondering of there can be two recipients that share the property when the Grantor dies? And is the distribution of value between the Grantees established in the deed?

Like | Dislike | Share | Posted: Tue, 05/25/2010 - 09:24 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My aunt is in Florida. I'm in Pa. She is now in a nursing home. She still owes $42k on her home. I cannot afford payments on two homes. What can I do? Can I apply for some kind of hardship from the mortgage company? Can I sell my aunt's home? My aunt has a will with me as the sole beneficiary. Please help? My aunt also has no savings, no money at all. I have been told to do a lady bird deed. But this would still require me to carry two mortgages and I can't afford that.
THank you.

Like | Dislike | Share | Posted: Mon, 01/03/2011 - 21:56 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Jerry, After reading through the thread it appeared that the LBD wouldn't affect title transfer until the death of the grantor. If this is accurate, then why would a mortgage holder call the loan during the lifetime of the borrower? Is there a rule in the statutes that prohibit LBD's for property with existing loans? Are there resources on the web for California Statute citation?

Thank You,
Gabe

Like | Dislike | Share | Posted: Thu, 08/19/2010 - 08:08 | Post subject:

sara's picture
sara | Joined: July 5, 2006 03:16 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi cjs,

If the tax bill is in granddaughter's name, then the granddaughter will be able to claim the taxes on her income tax.

Take care

Like | Dislike | Share | Posted: Wed, 02/02/2011 - 00:59

Niicss's picture
Niicss | Joined: October 3, 2005 11:54 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

A ladybird will only help you in transferring the property to your son. It won't transfer the mortgage in your name. Thus, though you transfer the property, you will remain liable for the mortgage payments.

Like | Dislike | Share | Posted: Fri, 02/04/2011 - 01:45

jenkin7's picture
jenkin7 | Joined: June 4, 2007 11:02 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Russ and Paul,

As far as I know, a lady bird deed is not applicable in the states of Massachusetts and Michigan. It is allowed only in the states of Florida, Texas, Ohio, California and Kansas.

Like | Dislike | Share | Posted: Tue, 12/29/2009 - 22:26

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

does arkansas except the lady bird deed.

Like | Dislike | Share | Posted: Mon, 06/07/2010 - 18:59 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I don't want to become homeless when my father passes away, and my dad wants me to have the house. Would this type of deed assist me. My siblings have agreed at this time that I could have first choice of buying the homeplace.

Like | Dislike | Share | Posted: Thu, 05/06/2010 - 20:19 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

can a lady bird deed be done when there is a mortgage on the property? If so, what would happen in the event the owner passes. Would the heir have to [url=http://www.mortgagefit.com/refinance.html]refinance[/url], continue to pay, or sell, etc?

Like | Dislike | Share | Posted: Thu, 12/02/2010 - 12:28

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

mother regrets listing brother as beneficary in life estate deed. can she revoke him as sole beneficary?

Like | Dislike | Share | Posted: Wed, 03/31/2010 - 19:24 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My father passed away in 1999 without his will being probated leaving his property of 25 acres to my mother. My mother passed away in 2009 and Medicaid took care of her in a nursing home and paid for her medical care and hospital bills. Can medicaid recovery pursue that 25 acres that actually was owned by my father. THat 25 acres is still in my father's mane. Please help.

Like | Dislike | Share | Posted: Wed, 05/12/2010 - 21:40

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My brother and I have become co-owners on a home in MI with a lady bird deed. Can either of us sell the house without the permission on the other?

Like | Dislike | Share | Posted: Mon, 08/25/2014 - 09:29 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

If a Lady Bird Deed is in place and if the Grantor and Beneficiaries wish to sell the property prior to the Grantor's death, is this allowed and if so, is the proceeds of the sale subject to a capital gain tax, using the original purchase price as the basis or the current stepped up basis?

Like | Dislike | Share | Posted: Mon, 02/01/2010 - 12:27 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Thank you Sussane. I assume the Mortgage company has to approve the deed?

Like | Dislike | Share | Posted: Sat, 09/18/2010 - 05:12 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Is there any chance that this type of deed will be legal in Utah?

Like | Dislike | Share | Posted: Mon, 11/08/2010 - 01:51 | Post subject:

smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Nancy!

Welcome to forums!

As far as I know, ladybird deed is not valid in the state of Michigan. Nevertheless, you should have a word with the real estate attorney and take his opinion in this matter.

Feel free to ask if you've further queries.

Sussane

Like | Dislike | Share | Posted: Thu, 04/28/2011 - 23:11

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Is the L.B. deed legal in Mass.

Like | Dislike | Share | Posted: Tue, 11/10/2009 - 13:57 | Post subject:

jheard's picture
jheard | Joined: December 12, 2007 08:20 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

This topic has become too long so I have locked it. Please ask your questions by posting a new topic in this forum.

Like | Dislike | Share | Posted: Thu, 09/04/2014 - 09:18

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Can one write their own Lady bird deed and simply have it recorded after signing and having it witnessed??

(as usual, I'm perplexed. After inserting my username, I read it's already been taken! How could that be??)

Like | Dislike | Share | Posted: Fri, 04/29/2011 - 07:50 | Post subject:

jenkin7's picture
jenkin7 | Joined: June 4, 2007 11:02 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

To raagtownmom,

It will be very hard for your mother to revoke the deed. The ownership of the property has been transferred and your mother holds only the life estate rights i.e. she has the right to stay in the property as long as she is alive. She cannot remove your brother from the deed unless she can prove that there was undue influence on her while she signed the deed. But to prove that in the court will not be an easy task.

Like | Dislike | Share | Posted: Wed, 03/31/2010 - 22:21

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Will a Lady Bird Deed duplicate a revocable trust?

Like | Dislike | Share | Posted: Fri, 04/29/2011 - 07:52 | Post subject:

adonis's picture
adonis | Joined: October 22, 2005 05:04 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Tx Sib,

The ladybird deed will come into effect as soon as it is signed whereas the will comes into effect after the death of the grantor. Thus the ladybird deed will be given importance in this case and you and your siblings will own the property.

Hi crockett,

If the property is still in your father's name, then Medicaid will not be able to do a estate recovery.

Like | Dislike | Share | Posted: Thu, 05/13/2010 - 00:11

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Can you explain the look back period that Medicaid does. I heard its 5yrs. If we do a ladybird now- do we wait 5yrs before applying for long term care. Can you give an example.

Like | Dislike | Share | Posted: Wed, 03/02/2011 - 08:50 | Post subject:

jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi jcrowe,

As far as I know, a ladybird deed is applicable in Florida, Texas, Ohio, California, and Kansas. Thus, it's not applicable in New Hampshire.

Thanks

Like | Dislike | Share | Posted: Mon, 06/28/2010 - 00:06

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Can you send me a form, or do I have to have a lawyer to file one?

Like | Dislike | Share | Posted: Fri, 03/19/2010 - 09:07 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Can you send me a form, or do I have to have a lawyer to file one?

Like | Dislike | Share | Posted: Fri, 03/19/2010 - 09:07 | Post subject:

jenkin7's picture
jenkin7 | Joined: June 4, 2007 11:02 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi sfed,

If there's a lady bird deed in place and the property is sold after the death of the grantor, stepped up basis is taken into consideration to determine the capital gains tax. However, in this situation the grantor is still alive and I think the original purchase price of the property will be taken into account while calculating the capital gains tax. But you should consult a tax advisor as he/she would be the best person to guide you in this regard.

Like | Dislike | Share | Posted: Wed, 02/03/2010 - 01:14

smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Guest!

Welcome to forums!

If there is no mortgage on the property, then your father can sign a warranty deed and transfer the property to you. If there is a mortgage on the property, then your father should sign a quit claim deed. After the property transfer is complete, you will have to refinance the mortgage in your name.

Feel free to ask if you've further queries.

Sussane

Like | Dislike | Share | Posted: Fri, 05/07/2010 - 02:13

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I OWN MY SISTERS HOME & PROPERTY BUT THERE IS A 'LIFE ESTATE' NOW SHE IS CONFINED TO A NURSING HOME AND WILL NEVER RETURN TO THE HOME AND PROPERTY

Like | Dislike | Share | Posted: Thu, 09/30/2010 - 21:55 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Can I put a lady bird deed on my home if I have a [url=http://www.mortgagefit.com/home-equity.html]home equity loan[/url] owing on my home?

Like | Dislike | Share | Posted: Sun, 08/15/2010 - 06:05 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

what if I prepare a quick claim deed and just don't file it until the person dies? Wouldn't that be better than going through all the hassle of a lady bird deed? This way, the older person still owns their home and can do whatever they want with it, it is protected from the government if they go into a nursing home, and it avoids probate. all the benefits of lady bird without the hassle and expense of hiring a lawyer to write it up.

Like | Dislike | Share | Posted: Sun, 08/01/2010 - 21:28 | Post subject:

savior70's picture
savior70 | Joined: March 25, 2009 05:14 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi dobb,

Through a lady bird deed, your father in law can transfer the property ownership rights to you while retaining a life estate on the property. It means that he can live in the property till the time he is dead or the property is sold. He will also hold his rights to sell the property and he will not require any of the heir's permission in order to do so.

Once the title to the property is in your name, you can refinance the trailer. But like the current lien holder, many lenders do not finance used trailers. So, you'll need to search a lot before you can find a lender willing to help you refinance the trailer.

Like | Dislike | Share | Posted: Mon, 03/22/2010 - 03:10

jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi madad,

As far as I know, ladybird deed is not legal in Michigan. Nevertheless, you should contact a Michigan based attorney and take his opinion in this matter.

Thanks

Like | Dislike | Share | Posted: Fri, 11/19/2010 - 23:00

smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi jaggs!

Welcome to forums!

As far as I know, the ladybird deed is not considered valid in Arkansas. However, I would suggest you to contact a real estate attorney based in Arkansas and take his opinion in this matter.

Feel free to ask if you've further queries.

Sussane

Like | Dislike | Share | Posted: Tue, 06/08/2010 - 00:03

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

where can I find the form?

Like | Dislike | Share | Posted: Tue, 07/20/2010 - 09:14 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

What if the grantor must go on medicade? Must she sell her home (homestead property) or will it be safe from creditors?

Like | Dislike | Share | Posted: Mon, 11/08/2010 - 09:01 | Post subject:

jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi mrs mrak,

You will have to check out whether or not the ladybird deed is valid in Michigan. You can contact a real estate attorney and he will be able to help you in this matter. If it's valid, then your parents can transfer the property to you.

To djandray,

You need to check out whether or not the deed is valid in Texas. If not, then though the property owner fills out and has it notarized, the deed won't be considered as valid.

Thanks

Like | Dislike | Share | Posted: Tue, 10/26/2010 - 23:50

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

So the fact that she has been on QMB prior to the 2005 does not exempt them? Also With the Deed in place will my father be penalized if he eventually needs Long term care, I heard that may happen and he would not qualify. Once again thank for any advice.

Like | Dislike | Share | Posted: Fri, 02/25/2011 - 21:18 | Post subject:

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

what kind of attorney do I need to draw up this kind o deed, real estate or elder law attorney

Like | Dislike | Share | Posted: Tue, 04/27/2010 - 15:00 | Post subject:

savior70's picture
savior70 | Joined: March 25, 2009 05:14 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

To Tex,

The Medicaid can come after your grandmother's land. The lady bird deed gives your grandmother the right to live in the property as long as she lives. The Medicaid will not come after the property till the time she is alive. The property will not be recovered even if she is in a nursing home as long as she has the intent to return to the property. But the Medicaid will come after the asset if you try and sell it off.

To smajic,

If she signs the lady bird deed it will not disqualify her for Medicaid. The Medicaid will not come after the asset even though she goes into a nursing home, provided she intends to return to the property. But if you intend to protect the property from Medicaid estate recovery, that might not be possible because Medicaid has a look back period of 5 years and any property transferred within the 5 year period will be subject to estate recovery.

Like | Dislike | Share | Posted: Tue, 04/20/2010 - 04:35

jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi laurenk,

You will have to contact a real estate attorney in order to get the ladybird deed drafted.

Thanks

Like | Dislike | Share | Posted: Wed, 04/28/2010 - 01:44

smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi!

Welcome to forums!

To Karen,

As far as I know, ladybird deed is not accepted in Michigan.

To Alaska,

I don't think ladybird deed is legal in West Virginia.

To Dunalee,

If the grandchild is an adult, then the property can be left to him or her. If the grandchild is not an adult, then the property can be left in a living trust.

To Guest,

Unless your children give you the permission, you won't be able to build a house on that property. Moreover, there are chances that the property should be in the name of the children.

Sussane

Like | Dislike | Share | Posted: Mon, 01/24/2011 - 23:54

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Can you tell me if the Lady bird deeds are accepted in the State of Michigan?

Thanks.

Like | Dislike | Share | Posted: Thu, 04/28/2011 - 07:32 | Post subject:

Niicss's picture
Niicss | Joined: October 3, 2005 11:54 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

I don't think that the ladybird deed is similar to that of the transfer on death deed. As far as I know, ladybird deed and transfer on death deeds are not accepted in Maryland.

Like | Dislike | Share | Posted: Fri, 09/25/2009 - 03:02

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

OK, actually, I found out that my mom made one for herself, thinking it would cover all the house...trying to protect it because my Dad's health is getting worse as well. Mom is dead. He does not have one in effect for his portion. I have a sibling who has moved in and is being abusive to my dad. I'm trying to figure out if and how I can protect my dad without dad having to leave his home. Is my sibling entitled to live there?

Like | Dislike | Share | Posted: Thu, 05/13/2010 - 07:39 | Post subject:

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