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.)
Quick Frequently Asked Questions
1. Who is responsible for paying the mortgage, insurance, and property taxes while the home is for sale?
Under Florida Statute § 733.608, the Personal Representative has the legal duty to take possession of and maintain the decedent’s real estate (unless it is protected homestead). The estate is generally responsible for paying the mortgage, utilities, and property taxes during the administration period. Property taxes are classified as a Class 3 priority debt under Florida Statute § 733.707, meaning they must be paid from the estate’s liquid assets before most other creditor claims.
2. Can the Personal Representative purchase the home from the estate for themselves?
This is known as self-dealing and is generally prohibited under Florida Statute § 733.610. Because the Personal Representative has a fiduciary duty to the beneficiaries, they cannot purchase estate property unless the decedent’s Will specifically grants that power or the court approves the transaction after a hearing. Any sale involving a conflict of interest is voidable by an interested person unless they consented after full disclosure.
3. What happens if one heir or beneficiary refuses to agree to the sale of the property?
If the beneficiaries cannot reach a consensus, the Personal Representative or any heir can file a Petition for Partition under Florida Statute § 733.814. This legal action asks the court to “partition” the property. If the home cannot be physically divided (which is true for most residential houses), the judge will order a forced sale of the property and distribute the net proceeds among the beneficiaries according to their respective interests.
4. Are the proceeds from the sale of a “Protected Homestead” still subject to the decedent’s creditors?
Generally, no. In Florida, if the property is determined to be Protected Homestead by a court order, the home—and the proceeds from its sale—passes to the heirs free of the claims of the decedent’s general creditors. However, to maintain this protection for the cash proceeds, the heirs must demonstrate a “good faith intention” to reinvest those funds into a new Florida homestead within a reasonable time, and the funds should not be commingled with other non-exempt money.
5. Is an “Order Authorizing Sale” always required to pass a clean title to a buyer?
It depends on the language of the Will. Under Florida Statute § 733.613, if the Will contains a “Power of Sale” clause specifically authorizing the Personal Representative to sell real property, a court order is generally not required to transfer title. However, if the decedent died intestate (without a Will) or the Will is silent on the power to sell, the Personal Representative must obtain an Order Authorizing Sale from the probate judge before the closing can legally occur.
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.