Selling a House in Probate in Florida: What You Need to Know
Inheriting a home is rarely simple. For many Florida families, it comes with an unexpected reality: before the house can be sold, it may have to go through probate. If you're dealing with this right now (or trying to plan ahead so your family doesn't have to) here's a clear, practical guide to how selling a house in probate in Florida actually works.
What Does "Probate" Mean for a House?
When someone dies owning real property in their name alone or having a separate interest in a property, that property doesn't automatically transfer to anyone. It becomes part of the deceased person's estate and must pass through Florida's probate process before it can be sold or transferred to heirs.
Probate is the court-supervised legal process of settling a deceased person's affairs, such as paying debts, validating the will (if there is one), and distributing assets to beneficiaries. Until that process is complete, no one has legal authority to sell the home.
This surprises a lot of families. They assume that because they're named in a will, they can simply list the house. In Florida, that's not how it works.
Can You Sell a House While It's in Probate in Florida?
Yes and in most cases, the personal representative already has the legal authority to do it.
Under Florida law, the personal representative (the person appointed by the court to manage the estate) has broad powers to sell and manage real property as part of administering the estate. Florida Statute 733.612 authorizes the personal representative to sell, lease, or encumber estate property without a separate court order, unless a last will specifically restricts that power. Court approval is the exception in Florida, not the rule.
That said, having the legal authority to sell and actually getting to the closing table are two different things. In practice, the real gatekeeper is the title company. Before insuring the transaction, most title companies will want to see the Letters of Administration confirming the personal representative's authority, and in many cases, a court order determining the homestead status of the property. Some title underwriters may also require an order authorizing the sale, not because the statute demands it, but because the underwriter wants the added comfort of a judge signing off.
The bottom line: the personal representative — not the heirs — is the one with legal authority to sign the contract and close the deal. But a probate attorney should be involved early to anticipate what the title company will need so there are no surprises at closing.
Step-by-Step: How Selling a House in Probate Works in Florida
1. Open the estate. A petition must be filed with the probate court in the county where the decedent lived. The court will formally appoint a personal representative and issue Letters of Administration for formal administration or an order in summary administration, the legal document that gives the personal representative authority to act on behalf of the estate. Nothing can happen with the property until this step is complete.
2. Determine homestead status. Before listing the property, the personal representative and their attorney need to determine whether the property qualifies as protected homestead under Article X, Section 4 of the Florida Constitution. If the decedent had a surviving spouse or minor children, the property may carry constitutional restrictions on how it can be transferred. In many cases, the attorney will need to obtain an Order Determining Homestead Status from the court. Title companies scrutinize homestead issues carefully, and resolving this question early avoids delays at closing.
3. Account for the creditor claims period. This is one of the most commonly overlooked issues. When a probate estate is opened, creditors have a window — typically three months from the first publication of the Notice to Creditors — to file claims against the estate. If the property is not homestead and the plan is for it to be sold before that creditor window closes, the sale can still proceed, but the proceeds will typically need to be held in the attorney's trust account or a restricted estate account until the creditor period expires. Most courts will require this as a condition of the sale. Families expecting to close and immediately receive their inheritance need to understand that there may be a waiting period before any funds can be distributed.
4. Value and list the property. The personal representative is required to include all assets, including real estate, on the estate inventory filed with the probate court. For the inventory, a broker's price opinion or comparative market analysis is often sufficient, though a formal appraisal may be needed depending on the property and the circumstances. Once the property is valued and any homestead issues are resolved, the home can be listed with a real estate agent and marketed like any other property. Buyers should be informed upfront that the sale is being made by an estate that is in probate, as this may affect the timeline and the documentation required at closing.
5. Negotiate and execute the contract. The personal representative signs the purchase contract on behalf of the estate. If the title company is requiring a court order authorizing the sale, the contract should include a contingency for that approval. If no court order is needed, the personal representative can execute the contract under their existing statutory authority.
6. Obtain court approval (if needed). In most situations - unfortunately - either the title company requires it or there may be an issue with heirs that calls for a sale through probate or perhaps the will restricts the personal representative's power to sell - either way, the personal representative may need to petition the court for an order authorizing the sale. The court may want to schedule a hearing, and in some cases, other parties may have the opportunity to be heard. This hearing process adds time to the process, but it is not typically required.
7. Close the sale. Once all approvals are in place and the title company is satisfied, the sale closes and proceeds are deposited into the estate account. Those funds are then used to pay valid creditor claims, taxes, and administrative costs in the order of priority established by Florida law before any remaining balance is distributed to beneficiaries.
How Long Does Probate Take in Florida?
This is the question most families ask first. The honest answer is: it depends.
A straightforward Florida probate with no disputes, a clear will, cooperative family members, and no significant creditor issues can be resolved in six to twelve months. More complex estates, such as those with creditor disputes, unclear title, multiple beneficiaries, or contested wills, can take significantly longer.
For families eager to sell quickly, this timeline can be frustrating. During the entire probate period, the property still needs to be maintained, insured, and secured. Utility bills, HOA dues, property taxes, and mortgage payments (if any) continue to accrue and are paid from the estate. The longer the process takes, the more those carrying costs eat into what is ultimately available for distribution.
Working with an experienced probate attorney from the outset is the single best way to avoid unnecessary delays and keep the process moving efficiently.
Florida's Homestead Exemption and Probate Sales
Florida's homestead laws add a critical layer of complexity to any probate real estate transaction. If the property was the decedent's primary residence, it may be constitutionally protected homestead under Article X, Section 4 of the Florida Constitution, which carries significant restrictions.
If the decedent had a surviving spouse or minor children, the homestead property cannot be devised freely by will. Instead, the surviving spouse is entitled to either a life estate in the property (with the remainder passing to the decedent's descendants) or an undivided one-half interest as a tenant in common with the descendants. The surviving spouse makes this election, and the choice affects how the property can be sold.
This matters for the sale because every person with a legal interest in the property must join in the sale. If there is a surviving spouse with a life estate and adult children holding the remainder interest, all of them must sign the deed. If any party refuses, the sale cannot close without court intervention.
Title companies will examine homestead status carefully before issuing a title insurance policy. An Order Determining Homestead entered by the probate court gives the title company the certainty it needs to insure the transaction. Getting this order early in the process is one of the most important steps a probate attorney can take to avoid delays at closing.
What If There's No Will?
If the deceased died without a will (known as dying "intestate"), Florida's intestacy statutes determine who inherits the property. The court will still appoint a personal representative, normally the surviving spouse or adult child, and the probate process proceeds in a similar fashion. The difference is that the distribution of assets follows a fixed statutory formula rather than the decedent's expressed wishes.
Intestate estates involving real property can be more complex when there are multiple heirs. Every heir with a legal interest in the property must be identified and accounted for before the property can be sold and the proceeds distributed. If any heir cannot be located, the personal representative may need to conduct a diligent search and potentially serve notice by publication before the estate can be closed. An experienced probate attorney can navigate these issues and help ensure the sale proceeds smoothly.
How to Avoid This for Your Own Family
The most effective way to spare your family from the probate real estate process is to keep your home out of your probate estate in the first place. Common strategies include:
A revocable living trust, with your home properly transferred (deeded) into the trust during your lifetime
Enhanced life estate deeds (Lady Bird deeds), which allow you to retain full control of the property during your lifetime while automatically transferring it to a named beneficiary at death without probate
Joint tenancy with right of survivorship, appropriate in some situations, particularly for spouses
Each option has tradeoffs, and Florida's homestead laws affect which strategies are available depending on your family situation. What works for one family may create problems for another.
Get the Right Guidance Before You List
Selling a home through Florida probate isn't impossible — families do it every day. But it requires understanding the process, working within the court's timeline, and making sure the personal representative has proper legal authority before anyone signs anything.
Whether you're currently administering an estate or planning ahead to protect your own family, having an experienced Florida probate and estate planning attorney in your corner makes the difference between a smooth process and an expensive delay.
Have questions about a probate property or want to plan ahead? Request a free consultation with ARC Law today.