Selling Real Estate in the Middle of a Probate

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You might think that when a loved one passes away, you have to wait until the probate process is complete to sell their home, but you actually don’t. Florida law generally allows heirs to sell a home before the rest of the probate is finished.

Here are the steps involved:

The personal representative can hire a Realtor.  Once the personal representative (PR) has been named by the court, that person is legally entitled to sign a listing agreement with a Realtor.  Alternatively, if they don’t want to use a professional agent (typically not a good idea, in my opinion), they can put the property up for sale themselves.

The property should be professionally appraised. If there is more than one beneficiary, it is a good idea to have the property professionally appraised, so everyone feels comfortable that they will be getting a fair price. In some probates, the court must oversee the sale (see below). In those cases, the judge will want to see comparably priced homes provided by a Realtor or appraiser, to be sure the home is being sold at market value.

Once a buyer is found, the personal representative signs the contract. The PR is the legal representative for the sale, even if the proceeds will be split among other heirs. (If the property falls under Florida “homestead law,” all beneficiaries will need to sign the contract.)

Unlike with a traditional sale, though, once the contract is signed and the deposit tendered, in some cases, the deal is not yet complete.

The court verifies the deal. A person can stipulate in their will that the personal representative has the authority to sell the home. Although some judges still require their approval in those deals, typically the court does not need to get involved in these cases. However, if there is no stipulation, the PR, working with their attorney, submits paperwork to the court to get their okay to finalize the sale. All heirs must agree with the terms of the deal.

The proceeds are held temporarily. While the rest of the probate is ongoing, the proceeds from the sale of the property are held in escrow by the probate attorney through the creditors’ claims period (typically 90 days). Once that time has passed, the proceeds are distributed according to the will or Florida law. (Even if it’s during the 90 days, the buyer takes possession of the property with a clear title.)

Having the Law Offices of Gary M. Landau by your side during each step in a real estate or probate matter helps insure that the process goes as smoothly as possible. For more information about your real estate or probate matter in South Florida, call 954-979-6566 or email for a free consultation.

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