How to Sell a Florida Home That is in Probate

An Introduction

In Florida, when the owner of a home passes away, their family is often left with the responsibility of maintaining the home while the decedent’s estate is administered through the probate courts. These responsibilities may include paying any outstanding mortgages, taxes, insurance, in addition to the general upkeep of the property.

For these reasons, selling the property is usually the best option for the beneficiaries when the property remains vacant. Fortunately, selling real estate during a probate administration is a common occurrence. But certain legal standards must be followed to avoid such sale being contested.

Can a house be sold before a probate case is completed?

Absolutely! In most cases in Florida, a family need not wait until the probate case formally closes before selling a property subject to the case. However, there are a few requirements prior to doing so.

First, the probate court must appoint a personal representative, which is the term commonly used in Florida for an executor or administrator, and issue the Letters of Administration, which are the documents that give the personal representative legal authority to act on behalf of the estate.

After the personal representative is appointed by the court, then the focus moves to the source of the authority to sell the property – i.e. the Will, if there is one.

Does the personal representative need a court order to sell a property in Florida?

This question is usually answered by examining the decedent’s Will. According to Florida Statutes §733.613, if the decedent’s Will confers the power of sale on the personal representative, then they are permitted to sell the property without court’s approval (subject to homestead designation as explained below).

However, if the Will is silent regarding the power of sale or if the decedent died intestate (i.e. without a Will), the personal representative usually must obtain a court order allowing the sale of the property or the joinder/participation of all potential beneficiaries. This particular difference significantly affects the timeline of a potential sale.

How does homestead affect the ability to sell property in a Florida probate case?

In Florida, homestead property passes outside of probate, directly to the heir of the decedent and is typically not considered a probate asset controlled by the personal representative; a fact often missed by many!

Practically speaking, this means the personal representative’s authority to sell property technically does not apply to homestead. However, every heir who inherited an interest in the property must sign the deed. As a result, the court must enter an order determining homestead status prior to the property being listed for sale. This formally informs all involved parties who is authorized to sign as the seller.

What are the steps in completing a thorough probate sale in Florida?

It is imperative that all required steps are followed. Skipping any step in the process will ultimately surface during the title insurance underwriting process and will thwart any pending transaction.

Step 1: Determine whether the property is actually an estate asset

It is important to note that not every property owned by the decedent passes through probate. For instance, property held as tenants by the entireties, in joint tenancy with right of survivorship, in a revocable trust, or subject to a recorded enhanced life estate (“Lady Bird”) deed passes outside the estate, and the surviving owner or remainderman sells it without probate involvement at all.

If the property does not otherwise pass outside of probate, then it must be determined if it homestead property. Under Fla. Stat. § 732.401 and § 733.607(1), constitutionally protected homestead is not an asset of the probate estate as the title legally vests in a surviving spouse and heirs upon the death of the decedent. As previously explained, the personal representative has no power to sell it as the heirs are the sellers. Getting thisparticular classificationincorrect is usually the most common cause of a failed probate closing.

Step 2: Open the correct form of administration

There are three forms of probate administration in Florida. They are described below.

• Formal administration is required for most estates and is the process that produces a personal representative with authority to convey non-homestead real property.
• Summary administration is available where the non-exempt estate does not exceed the statutory limit, or where the decedent has been dead more than two years regardless of value according to Stat. § 735.201. (Note that Florida CS/SB 1500 raised the value threshold from $75,000 to $150,000 effective July 1, 2026, applicable to decedents dying on or after that date.)This type of administration produces an order of distribution rather than letters of administration, so the recipients named in the order are the ones who may legally sign the deed.
• Ancillary administration is required under Stat. § 734.102 where a non-resident decedent owned Florida real property as the out-of-state probate alone will not convey Florida title.

Step 3: Appoint the personal representative and obtain Letters of Administration

No binding contract may be signed until the probate court issues Letters of Administration. Title underwriters will want certified letters dated within a defined window (usually 60 to 90 days of closing).

Step 4: Establish the personal representative’s authority to sell

This step rests entirely on Fla. Stat. § 733.613:

• If the Will confers a power of sale: subsection (2) allows the personal representative to sell, mortgage, or lease estate real property “without authorization or confirmation of court.”
• If the estate is intestate, or the Will does not confer a power of sale: subsection (1) applies, and the statute is explicit that no title passes until the court authorizes or confirms the sale. A petition for authority to sell, with notice to interested persons, is required. 

Step 5: If the property is homestead, obtain an order determining homestead status

Where the property was the decedent’s homestead, the practical prerequisite is an Order Determining Homestead Status under Fla. Prob. R. 5.405.

This order identifies who took title by operation of law and confirms the property’s exemption from the claims of the decedent’s creditors.

Most Florida title insurance underwriters will not insure a homestead sale out of probate without this order and every person with an interest under the order (including any spouse, whether or not on title) must join in the sale contract and the deed.

Step 6: Order the title search early

Although not always doable, it is advisable to run a title search at listing the property for sale. Probate files regularly reveal recorded judgments against the decedent or against an individual heir, unsatisfied mortgages, open code enforcement liens, prior unprobated deaths in the chain of title, and missing or unlocatable heirs. Finding out about any of these hiccups early on in the procedure heightens the likelihood of a successful sale.

Step 7: Serve notice to creditors and account for the claims period

Publication and service of the Notice to Creditors starts the claims period under Fla. Stat. § 733.702. While a sale can close during that period, the personal representative must reserve sufficient funds to satisfy any timely-filed claims, administrative expenses, etc. Fla. Stat. § 733.710 bars most claims two years after death. For this reason, sales in long-dormant estates are usually the cleanest.

Step 8: List and market the property

The personal representative owes a fiduciary duty to the beneficiaries and should be able to demonstrate that the property was exposed to the market and sold at fair value. A current appraisal or broker price opinion is advisable to protection against a later objection to the sale or to the accounting, particularly where a beneficiary, or a party related to the personal representative, is the buyer.

Step 9: Paper the contract correctly

The seller is the estate, acting through the personal representative in that capacity, or, for homestead, the heirs individually. Standard practice is the FAR/BAR “As Is” contract with a probate addendum that (a) conditions closing on entry of the order authorizing or confirming the sale where § 733.613(1) applies, (b) allows a realistic timeline for court approval, and (c) addresses the personal representative’s limited personal knowledge of the property’s condition.

Step 10: Obtain the order authorizing or confirming the sale, if required

When dealing with an intestate estate or if the Will does not confer a power of sale, the next step would be to file the petition, give notice to interested persons, and obtain the order approving the sale before closing. Waivers and consents from all beneficiaries will usually let the court enter the order without a hearing and can save several weeks.

Step 11: Close and convey by the correct instrument

Usually, non-homestead estate property is conveyed by Personal Representative’s Deed, executed by the personal representative in a representative capacity, with the letters and any order of sale recorded or provided to the title insurance underwriter. While homestead is conveyed by the heirs by warranty or quitclaim deed, and recorded along with the order determining homestead status.

Step 12: Deposit proceeds into the estate account

While sale proceeds from non-homestead propertybelong to the estate and must be deposited into the estate’s fiduciary account (not distributed to the beneficiaries at the closing table),proceeds from protected homestead sold by the heirs belong to the heirs directly and retain their exempt character if properly segregated.

Step 13:Report the sale and complete the administration

Finally, the sale is reported in the inventory and the accounting, and the net proceeds are distributed under the will or the intestacy statute once the claims period has run and the court enters the order of distribution and discharge.

Is there a quicker option rather than a full probate proceeding in Florida?

Depending on the value of the estate or the length of time that has passed since the decedent’s death, Florida allows for a summary administration. Such a proceeding may be faster and less costly. However, it does not appoint a personal representative like with a formal proceeding. This changes how a sale may be handled. As such, whether this route is advisable is determined on a case-by-case basis.

Frequently Asked Questions

When to Speak with a Florida Estate Planning Attorney about Selling a Florida Home in Probate?

While a home may undoubtedly be sold during a Florida probate procedure, a specific order of precedence must be followed – first, the personal representative must be appointed, then the homestead status determined, then the creditor-claim process must be considered all before obtaining court approval, if necessary.

To learn more about the available options and how we may assist with the sale of a property that is subject to a probate proceeding, contact us here.

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