Selling Estate Real Estate During Florida Probate: A Personal Representative’s Guide

Selling estate real estate during Florida probate means transferring a deceased person’s real property to a buyer while the estate is still being administered by the probate court. The personal representative (Florida’s term for an executor or administrator) generally needs either a specific grant of authority in the will or a court order under Florida Statutes § 733.613 before the sale can close. Homestead property is treated very differently and often cannot be sold through ordinary probate at all.

That short answer hides a lot of moving parts. I have watched clean sales fall apart at the closing table because someone assumed the personal representative could sign a deed the same way the decedent would have. Florida probate doesn’t work that way, and the consequences of getting it wrong range from a clouded title to a personal liability claim against the representative. Below is how these sales actually proceed.

When Does a Florida Estate Have Authority to Sell Real Property?

The first question is never “what’s the house worth.” It’s “who has the legal power to convey it.” In Florida, real property passes to the heirs or devisees at the moment of death, subject to the estate’s right to use it for administration. That distinction matters. The personal representative does not automatically own the house; the representative has a statutory power to deal with it under certain conditions.

There are two main paths to authority:

• Power of sale in the will. If the decedent’s will expressly authorizes the personal representative to sell real estate, § 733.613(1) lets the representative sell without a separate court order, provided the sale is consistent with the will’s terms. A well-drafted will usually includes this language. Many do not.
• Court order authorizing the sale. When the will is silent, or there is no will at all (intestacy), § 733.613(2) requires the personal representative to petition the court for authority to sell. The court reviews whether the sale serves the estate — typically to pay debts, taxes, expenses of administration, or to facilitate distribution — and issues an order.

Even with a power of sale in the will, the representative still owes fiduciary duties to the beneficiaries. Selling below market, to an insider, or without reasonable marketing can expose the representative to a surcharge action regardless of what the will permits.

The Homestead Problem

This is where Florida departs sharply from New York and most other states. Under Article X, Section 4 of the Florida Constitution, a decedent’s homestead passes outside the probate estate to a surviving spouse and/or descendants, and it is shielded from most creditors. If the property is constitutionally protected homestead, the personal representative usually has no authority to sell it as an estate asset, because it isn’t really an estate asset.

To clear homestead, the practice is to file a petition to determine homestead status. The court enters an order confirming the property descended to the protected heirs. Only then can those heirs — not the estate — sell the property and convey clean title. I have seen contracts signed by a personal representative on a homestead that were, in effect, void, because the seller had no legal interest to convey. Title underwriters catch this, and the deal stalls until the homestead question is resolved. For families navigating a contested transition — say, a guardianship that converted into a probate after the ward’s death — the homestead determination can become its own litigation front, especially when descendants disagree about who inherited what share.

The Step-by-Step Process for Selling During Administration

Assuming the property is not protected homestead, or homestead has been resolved, a typical sale follows this sequence:

1. Open probate and obtain Letters of Administration. No buyer’s title company will close without Letters showing the representative’s appointment and the scope of authority.
2. Confirm the source of authority. Read the will. If it grants a power of sale, document it. If not, prepare the petition under § 733.613(2).
3. Market and contract. The representative signs a listing and, eventually, a purchase contract — often with a probate-specific addendum noting the sale is subject to court approval if required.
4. Petition the court (when needed). File for authority to sell, give notice to interested persons, and obtain the order. Some judges want the contract attached; some require a showing that the price is reasonable.
5. Address creditor claims. Sale proceeds may be needed to satisfy claims filed during the creditor period (generally three months from the first publication of notice to creditors under § 733.702, subject to the longer outside limits in § 733.710). Selling before the claims picture is clear can create problems.
6. Close and deed. The representative executes a personal representative’s deed, the title company insures over the probate, and proceeds flow into the estate account.

Notice to interested persons is not a formality. Beneficiaries and, sometimes, creditors are entitled to be heard. A representative who quietly sells and distributes can find the sale challenged later. This is the same fiduciary logic we see in , where notice and accountability protect the people standing behind the estate.

Tax Liens, Mortgages, and Title Cleanup

Most estate properties carry baggage. A few of the recurring issues:

• Existing mortgages. The lien survives death. The sale must pay off the loan or the buyer assumes it (rare). The federal Garn-St. Germain Act protects certain transfers to relatives from due-on-sale acceleration, but a sale to a third party still triggers payoff.
• Property tax and code liens. Florida ad valorem taxes and municipal liens attach to the land and must be cleared at closing.
• Joint ownership and survivorship. If the decedent held the property as joint tenants with right of survivorship or as tenants by the entireties with a spouse, it likely passed automatically outside probate — meaning the estate has nothing to sell. Always pull the deed before assuming probate is the right vehicle.
• Reverse mortgages. Increasingly common with elderly decedents, and they accelerate at death with a defined repayment window. Time pressure is real.

When a deceased owner held New York property in addition to Florida real estate, ancillary administration may be needed in the other state, and disputes over who controls the sale can spill into . Coordinating two jurisdictions is its own discipline; the deadlines and notice rules do not match.

Contested Sales: When Beneficiaries Disagree

Real estate is illiquid, emotional, and usually the largest asset in the estate. It is also the thing beneficiaries fight over most. Common flashpoints:

• One heir wants to sell; another wants to keep the family home.
• A beneficiary believes the price is too low or the buyer is connected to the representative.
• Heirs dispute who inherited the homestead in the first place.
• A guardianship that preceded death left lingering questions about whether the property was properly managed before the owner passed.

When the conflict has roots in a prior guardianship — for example, a guardian sold or encumbered property during the ward’s lifetime and the heirs now challenge those acts in the probate — the sale question becomes inseparable from the accounting question. Florida courts can require the representative to account before approving distribution of proceeds. If you are facing this kind of layered dispute, get counsel early; the cost of unwinding a contested sale dwarfs the cost of doing it right. Our firm handles these matters and you can reach us through our contact page or learn more about our Florida probate services.

Practical Timing Expectations

A straightforward summary administration with a power-of-sale will can move quickly — weeks, not months — once Letters issue. A formal administration that requires a court-ordered sale, creditor period, and notice to multiple interested persons commonly takes several months before a deed can record. Contested sales have no reliable timeline; they end when the litigation does.

Protecting the Personal Representative

The representative is a fiduciary, personally exposed if the sale is mishandled. A few protective habits go a long way:

• Obtain an independent appraisal or broker price opinion before listing.
• Market the property openly rather than selling to an insider.
• Get written consents from beneficiaries when feasible.
• Seek court approval even when the will arguably permits a sale without it — an order is cheap insurance.
• Keep every offer, counter, and communication in the file.

For families and representatives weighing a sale in Florida, the firm’s Florida probate practice can walk you through authority, homestead, and the court-approval path. If you also need to revisit the underlying estate plan, our wills and estate planning resources cover how a properly drafted power of sale prevents most of these headaches before they start.

The recurring lesson is simple: confirm authority before you list, resolve homestead before you contract, and respect the rights of the people standing behind the estate. Do those three things and most Florida probate sales close without drama.

Frequently Asked Questions

Can a personal representative sell a house in Florida probate without going to court?

Yes, if the will expressly grants a power of sale, the personal representative may sell under Florida Statutes § 733.613(1) without a separate court order, as long as the sale is consistent with the will and the representative’s fiduciary duties. If the will is silent or there is no will, a court order authorizing the sale is required under § 733.613(2).

Why can't homestead property be sold through probate in Florida?

Under Article X, Section 4 of the Florida Constitution, a decedent’s homestead passes outside the probate estate directly to a surviving spouse and/or descendants. Because it isn’t an estate asset, the personal representative usually has no authority to sell it. The court must first determine homestead status, after which the protected heirs — not the estate — can sell and convey clean title.

How long does it take to sell estate real estate during Florida probate?

A summary administration with a power-of-sale will can move within weeks of Letters issuing. A formal administration requiring a court-ordered sale, the creditor claims period, and notice to interested persons usually takes several months. Contested sales have no fixed timeline and resolve only when the dispute does.

What happens to the mortgage when you sell a deceased owner's Florida home?

The mortgage lien survives the owner’s death and must be paid off at closing from the sale proceeds, unless the buyer assumes it. Property taxes, code liens, and any reverse-mortgage balance must also be cleared so the title company can insure over the probate and the personal representative’s deed can record.

What is a personal representative's deed?

It is the deed a Florida personal representative signs to convey estate real property to a buyer, in their fiduciary capacity rather than as an individual owner. The title company relies on the Letters of Administration and any court order authorizing the sale to confirm the representative had authority to sign and to insure the buyer’s title.