Many people assume that real estate cannot be sold until a probate case is finished. In Florida, that is not correct. In many situations, a house or other property can be sold during the probate administration. Whether it can be sold, and how the sale occurs, depends on the type of property involved and the authority given to the personal representative.
This article explains how the sale of real estate works during a Florida probate.
Exempt Homestead Property
Florida law treats homestead property differently from other estate assets.
When a decedent’s primary residence qualifies as homestead under Florida law, it is generally not subject to the claims of most creditors and does not become a typical probate asset. Instead, the probate court determines the homestead status and identifies the heirs who receive the property (see Chapter 732, Part IV, Florida Probate Code).
After the court enters an order determining homestead status, the property typically passes directly to the heirs and is no longer administered as part of the probate estate.
At that point, the heirs own the property and may choose to sell it. The sale usually occurs outside the probate process because the property has already passed to the heirs.
Non-Homestead Real Estate
Real estate that does not qualify as exempt homestead remains an asset of the probate estate. Examples include:
• rental properties
• vacation homes
• commercial properties
• vacant land
These properties are typically sold through the probate estate so that the proceeds can be distributed to beneficiaries or used to pay estate expenses.
The authority of the personal representative to sell the property depends on the will and Florida probate law.
When the Will Authorizes the Sale
Many wills specifically give the personal representative the power to sell estate property. Florida law recognizes these powers. (see § 733.612). :
If the will grants the personal representative the power to sell real estate, the personal representative can usually proceed with the sale without prior court approval.
In that situation, the process typically involves:
• listing the property with a real estate broker
• signing a contract as personal representative of the estate
• completing the closing through a title company
The deed transferring the property is signed by the personal representative and identifies the probate case.
Although court approval may not be required, the personal representative must still act in the best interests of the beneficiaries and comply with fiduciary duties.
When the Will Is Silent
If the will does not grant the personal representative authority to sell real estate, the personal representative generally must ask the probate court for permission before selling the property.
This is done by filing a petition to sell real property.
The court then reviews the request and determines whether the sale is appropriate for the administration of the estate.
Florida Probate Rule 5.370 governs the sale of estate property.
The petition typically explains:
• the property involved
• why the sale is necessary
• the proposed sale price or listing plan
• how the proceeds will benefit the estate
If the court approves the sale, it will enter an order authorizing the personal representative to proceed.
What Happens If Beneficiaries Disagree About Selling?
Disagreements among beneficiaries are common in probate cases.
If the will gives the personal representative the power to sell property, the personal representative may proceed with the sale even if some beneficiaries object, as long as the decision is reasonable and consistent with fiduciary duties.
However, if the will is silent and beneficiaries cannot agree, the court may need to resolve the issue.
In those cases, the court may authorize the sale if it determines that selling the property is in the best interests of the estate.
If the property has already passed to multiple heirs (such as homestead property), and the heirs cannot agree on whether to sell it, a separate legal action called a partition action may be required to force a sale.
Final Thoughts
Real estate can often be sold during a Florida probate, but the process depends on several factors:
• whether the property is homestead
• whether the will authorizes the personal representative to sell it
• whether court approval is required
• whether the beneficiaries agree on the sale
Because the rules vary depending on the circumstances, it is important to obtain legal guidance before listing estate property for sale.
If you are dealing with a probate that involves real estate, you may also want to read our article explaining how long Florida probate typically takes.
If you need help opening a probate estate in Broward, Palm Beach, or Miami-Dade County, contact Clarke Law PA at (954) 556-8952.