Selling a House in Florida Probate
Fla. Stat. § 733.613
A Florida personal representative can sell estate real estate before probate closes. If the will grants a power of sale, no court order is needed; otherwise the court must authorize or confirm the sale (Fla. Stat. § 733.613). Protected homestead is different: it is not an estate asset, and the people who inherit it generally sign the deed.
What it is
The first question is whether the house belongs to the probate estate at all. All of the decedent's Florida real and personal property except protected homestead is an asset in the personal representative's hands, available to pay devises, claims and expenses and for distribution (Fla. Stat. § 733.608(1)). The personal representative takes possession of estate property but not of the protected homestead (Fla. Stat. § 733.607(1)). Property owned as tenants by the entireties or as joint tenants with right of survivorship is not protected homestead under the Probate Code (Fla. Stat. § 731.201(33)).
For a house that is an estate asset, someone needs authority to sign the deed. A will does not prove title until it is admitted to probate (Fla. Stat. § 733.103(1)), and a personal representative's powers begin on appointment (Fla. Stat. § 733.601). Once appointed, the personal representative can sell during the administration; there is no need to wait for the estate to close. For the rest of the job, see personal representative duties in Florida.
Where the will gives a specific power to sell or mortgage real property, or a general power to sell any estate asset, the personal representative may sell without court authorization or confirmation, and the sale need not be justified by necessity (Fla. Stat. § 733.613(2)). Where the decedent left no will, the will grants no power of sale, or the power is too limited to use conveniently, the personal representative may still sell at public or private sale if it is in the best interest of the estate, but no title passes until the court authorizes or confirms the sale (Fla. Stat. § 733.613(1)).
In a sale under a specific power of sale or a court order, the buyer takes title free of claims of estate creditors and beneficiaries' entitlements, though existing mortgages and liens remain (Fla. Stat. § 733.613(3)).
When a Court Order Is Needed
Under Fla. Stat. § 733.613, the personal representative needs the court to authorize or confirm a sale of estate real property when:
- The decedent died without a will.
- The will does not confer a power of sale.
- The will grants a power of sale, but it is so limited by the will or by law that it cannot be conveniently exercised.
Even with a power of sale, the personal representative must act for the best interests of the interested persons (Fla. Stat. § 733.602(1)). The general power to buy and sell estate assets without a court order in Fla. Stat. § 733.612(5) expressly excludes real property, which is why § 733.613 controls house sales.
Estate Real Property vs. Protected Homestead
| Aspect | Estate (non-homestead) real property | Protected homestead |
|---|---|---|
| Part of the probate estate | Yes (Fla. Stat. § 733.608(1)) | No (Fla. Stat. § 733.608(1)) |
| Available for estate creditors' claims | Yes | No; excluded from the assets used to pay claims (Fla. Stat. § 733.608(1)) |
| Personal representative's role | Takes possession and may sell under a power of sale or court order (Fla. Stat. §§ 733.607, 733.613) | May, but need not, take possession of an unoccupied property only to preserve it (Fla. Stat. § 733.608(2)) |
| Typical title document | Letters of administration plus the will's power of sale or a court order | A recorded order determining homestead status (Fla. Prob. R. 5.405) |
Steps in a Typical Probate Home Sale
The order below is typical; the facts of the estate and the buyer's title insurer can change it.
- Determine how the house was titled and whether it may be protected homestead.
- Open probate and obtain letters of administration for the personal representative.
- If homestead is likely, file a petition to determine homestead status. The court's order describes the property, decides whether it is protected homestead, and names the persons entitled to it and their interests (Fla. Prob. R. 5.405).
- Check the will for a power of sale. If there is none, plan for a petition asking the court to authorize or confirm the sale (Fla. Stat. § 733.613(1)).
- Order a title commitment early, so the title insurer's requirements are known before a contract is signed.
- Market the property and sign a contract. If court confirmation is required, the contract should allow for it.
- Close, pay off any mortgage or lien, and deposit estate proceeds into the estate account for claims, expenses and distribution.
Protected Homestead and the Order Determining Homestead
Protected homestead is the Florida residence on which the constitutional homestead exemption passes at death to the owner's surviving spouse or heirs (Fla. Stat. § 731.201(33)). If the owner is survived by a spouse or a minor child, the homestead cannot be devised by will, except that it may be left to the spouse if there is no minor child (Fla. Stat. § 732.4015(1)).
If the homestead is not devised as the law allows, it descends like other intestate property, except that when a spouse and descendants survive, the spouse takes a life estate and the descendants take a vested remainder (Fla. Stat. § 732.401(1)). The spouse may instead elect, within 6 months after the death, to take an undivided one-half interest as a tenant in common with the descendants (Fla. Stat. § 732.401(2)). Either way, several people may hold interests in the same house, and a buyer's title insurer will generally expect each of them to sign.
Because protected homestead is not an estate asset, the personal representative generally does not sign the deed. The heirs or devisees who own it do, usually after the court enters and the family records an order determining homestead status. If the personal representative spent money preserving the property and recorded a lien, the court may move that lien from the house to the sale proceeds so the sale can close (Fla. Stat. § 733.608(12)). For the full rules, see homestead property in Florida probate.
When Siblings Disagree About Selling
If the house is an estate asset and the will grants a power of sale, the statute does not make the beneficiaries' consent a condition of the sale (Fla. Stat. § 733.613(2)). The personal representative must still act in the best interests of the interested persons, and a beneficiary harmed by a breach of fiduciary duty can seek damages, with costs and attorney's fees awarded in those cases (Fla. Stat. §§ 733.602(1), 733.609(1)). Without a power of sale, the court must authorize or confirm the sale, which gives the family a forum to raise objections (Fla. Stat. § 733.613(1)).
If no sale happens in probate, estate assets are generally distributed in kind (Fla. Stat. § 733.810(1)), and when it is not practicable to distribute undivided interests in a residuary asset, the asset may be sold (Fla. Stat. § 733.810(3)). Siblings who end up owning a house together, whether through distribution or as heirs of a homestead, are co-owners. Any co-owner may file a partition action against the others (Fla. Stat. § 64.031). If the court finds the property cannot be divided without prejudice to the owners, it may order it sold and the proceeds divided by interest (Fla. Stat. § 64.071(1)). Mediation is often worth trying first; see probate mediation.
Title Insurance in a Probate Sale
Most buyers and lenders require title insurance, and the title insurer decides what it needs to see from the probate file before it will insure. Common requirements include certified letters of administration, the probated will or the order authorizing or confirming the sale, a recorded order determining homestead status, and proof that the estate's taxes, mortgages and liens are handled. Requirements vary by underwriter and by estate, so obtaining the title commitment early avoids surprises at closing.
Is an attorney required?
For the personal representative, yes: Florida Probate Rule 5.030(a) requires a Florida attorney unless the personal representative is the sole interested person. Heirs selling a protected homestead after it passes to them are not under that rule, but they usually need the order determining homestead status first, which requires a court filing.
Frequently Asked Questions
Can you sell a house before probate closes in Florida?
Yes. Once the court appoints a personal representative, the personal representative can sell estate real estate during the administration. With a power of sale in the will, no court order is needed; without one, the sale requires the court to authorize or confirm it (Fla. Stat. § 733.613). Protected homestead follows different rules because it is not an estate asset.
Does a personal representative need court approval to sell a house in Florida?
Only if the will does not provide a usable power of sale. When the will grants a specific power to sell real property or a general power to sell any estate asset, the personal representative may sell without court authorization (Fla. Stat. § 733.613(2)). If the decedent died without a will, or the will grants no workable power of sale, no title passes until the court authorizes or confirms the sale (Fla. Stat. § 733.613(1)).
Can heirs sell an inherited homestead in Florida?
Generally yes, because protected homestead passes to the heirs or devisees rather than becoming an estate asset (Fla. Stat. § 733.608(1)). In practice, title insurers usually want a recorded court order determining homestead status that names the owners and their interests (Fla. Prob. R. 5.405), and each owner, including a surviving spouse with a life estate, will generally need to sign.
What if one sibling refuses to sell an inherited house in Florida?
It depends on who holds title. If the house is still an estate asset and the will grants a power of sale, the personal representative may sell without the beneficiaries' consent, subject to fiduciary duties (Fla. Stat. §§ 733.613(2), 733.602). If the siblings already own the house together, any co-owner may file a partition action (Fla. Stat. § 64.031), and the court may order a sale if the property cannot be fairly divided (Fla. Stat. § 64.071).
Who pays the mortgage and upkeep during probate?
For estate property, the personal representative must take reasonable steps to manage, protect and preserve it (Fla. Stat. § 733.607(1)), and a mortgage lender keeps its right to enforce its lien (Fla. Stat. § 733.702(4)(a)). For apparent homestead that is unoccupied, the personal representative may pay to preserve and insure it and secure those costs with a lien on the property (Fla. Stat. § 733.608(2)–(3)).
Does the buyer get clear title in a probate sale?
In a sale made under a specific power to sell real property or under a court order authorizing or confirming the sale, the buyer takes title free of estate creditors' claims and beneficiaries' entitlements, but existing mortgages and liens are not affected (Fla. Stat. § 733.613(3)). The title insurer will still set its own requirements.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Need to sell a house that is tied up in a Florida estate?
Call (407) 843-0430 or schedule a consultation with an Orlando probate attorney to sort out whether the house is an estate asset or homestead and what the sale will require.
Or text PROBATE to (407) 906-9507 for a faster response.
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