Selling estate real estate during Florida probate means transferring a deceased person’s real property through the authority of a court-supervised estate, usually by the personal representative named in the will or appointed by the court. In most formal administrations the sale is authorized either by a provision in the will or by a court order under Florida law, and the proceeds become part of the estate. Whether you can sell quickly, slowly, or at all depends on the type of administration, whether the property is homestead, and who has a claim against the estate.
I have handled probate sales across Miami-Dade, Broward, and Palm Beach counties, and the same questions come up every time: Who is allowed to sign the deed? Do the heirs have to agree? What happens to the mortgage? This guide walks through how real estate is actually sold during a Florida probate, where deals stall, and how a contested guardianship that rolls into a probate can complicate the whole thing.
Who Has Authority to Sell Estate Property in Florida?
Real estate doesn’t sell itself, and neither do heirs by default. In Florida, the authority to sell a decedent’s real property generally rests with the personal representative (what other states call an executor or administrator), once that person is appointed by the circuit court and issued Letters of Administration.
That authority comes from one of two sources:
- A power of sale in the will. If the will expressly grants the personal representative the power to sell real estate, the representative can usually market and close the property without first obtaining a separate court order. Under Florida Statutes section 733.613(2), a personal representative who is given a power of sale in the will may sell without court authorization, though the sale remains subject to challenge.
- A court order. If the will is silent, or the decedent died intestate (without a will), the personal representative typically must petition the court for authority to sell. Section 733.613(1) governs sales of real property when the power is not conferred by the will.
There is an important wrinkle: title to a decedent’s non-homestead real property vests in the heirs or devisees at the moment of death, subject to administration. That means the personal representative’s power to sell exists alongside the heirs’ technical ownership interest. In practice, a careful closing attorney will want the right signatures and the right court paper before a title company will insure the deal.
What If the Heirs Disagree?
This is where probate sales get tense. When several siblings inherit Mom’s condo in Aventura and one wants to keep it while the others want cash, the personal representative is caught in the middle. If the will grants a power of sale, the representative can generally proceed even over an heir’s objection, but should expect the objecting party to petition the court or, in extreme cases, to seek the representative’s removal. When there is no power of sale, the court hearing on the petition to sell becomes the forum where those disputes get aired.
Homestead Property: The Florida Rule That Trips Everyone Up
Florida’s constitutional homestead protection (Article X, Section 4 of the Florida Constitution) changes everything. Homestead property that passes to heirs is generally not a probate asset in the ordinary sense and is not subject to most creditor claims. A personal representative does not automatically have the power to sell homestead real estate as part of the estate.
Before homestead can be sold, the court usually must enter an order determining homestead status and identifying who took title. Once homestead descends to the protected heirs, those heirs, not the personal representative, own it outright and must sign the deed to convey it. If a surviving spouse and minor children are involved, the descent rules in section 732.401 control who gets what interest, and a life estate or the statutory election can complicate a clean sale.
I have seen sales collapse at the closing table because nobody obtained an order determining homestead, and the title underwriter refused to insure. Sort the homestead question out early.
The Step-by-Step Process of a Probate Real Estate Sale
Every estate is different, but a typical formal administration sale in Florida follows this arc:
- Open the estate and get appointed. File the petition for administration, get Letters of Administration, and confirm the type of administration (formal vs. summary).
- Determine the character of the property. Is it homestead or non-homestead? Solely owned or held with rights of survivorship (which would pass outside probate)? This drives everything that follows.
- Confirm your authority. Read the will for a power of sale. If none exists, prepare a petition to authorize the sale.
- Address liens and the mortgage. A mortgage survives death. Order a payoff, identify any judgment liens, property tax delinquencies, or code enforcement liens, and factor them into the net.
- Market and contract. List the property, accept an offer, and use a contract that discloses the probate status and any court-approval contingency.
- Obtain court approval if required. If selling under section 733.613(1), present the petition and proposed sale to the court. Interested persons receive notice and may object.
- Close and disburse. Execute the personal representative’s deed, pay liens and costs, and hold or distribute proceeds according to the estate plan and the court’s instructions.
Summary administration, available for smaller estates or where the decedent has been dead more than two years, follows a leaner path and often relies on an order of summary administration that itself directs distribution of the property rather than a personal representative’s deed.
Liens, Mortgages, and Creditor Claims
Death does not erase debt secured by the property. The mortgage stays attached, and the buyer’s lender and title company will require it to be paid at closing. Beyond the mortgage, the personal representative must reckon with the estate’s creditor claims under Part VII of Chapter 733. The notice to creditors and the claims period matter: selling and distributing proceeds before the claims period closes can expose the representative to personal liability if a valid claim later surfaces.
A prudent representative will keep enough liquidity in the estate to cover potential claims, administrative expenses, and taxes before distributing sale proceeds to beneficiaries. When in doubt, ask the court for instructions.
When a Contested Guardianship Becomes a Probate Sale
Many of the hardest probate sales I see did not start as probate at all. They began as a guardianship. An aging parent loses capacity, a guardian is appointed, and the guardian sometimes already petitioned the court to sell the ward’s home to fund care. When the ward dies, that guardianship closes and the estate opens, and any disputes that festered during the guardianship migrate straight into the probate.
If a sale was pending or partially completed during the guardianship, the new personal representative inherits the mess: contracts in limbo, accounting questions, and family members who already accused one another of self-dealing. Guardianship sales are governed by a different chapter (Chapter 744) and require court approval under section 744.447, so it is critical to confirm what was actually authorized before death and what must be redone in the probate. These guardianship-to-probate transitions are exactly the kind of contested matters our firm focuses on. If you are facing one, our overview of the Florida probate process is a useful starting point.
Watch for Will Contests and Litigation
When a sale is contested, the dispute often expands into a full matter. Allegations of undue influence over a recent deed, capacity questions tied to a late-life sale, or claims that the personal representative breached fiduciary duty can all freeze a closing. Florida and New York courts approach these fights similarly, and experienced estate litigators on either coast can help you understand whether a sale should proceed, pause, or be unwound. For broader context on how a probate case moves through the courts, this explanation of the is worth reading.
Practical Tips for a Smooth Probate Sale
- Get the homestead determination early. Do not wait until the closing table to discover the title company won’t insure.
- Use a probate-savvy title company. Underwriters vary widely in what court documentation they require.
- Disclose the probate status in the listing and contract. Buyers should know a court-approval contingency may apply.
- Keep beneficiaries informed. Most objections grow out of silence, not the price.
- Do not distribute proceeds prematurely. Wait out the creditor claims period or get court instructions.
Selling estate real estate during Florida probate is entirely doable, but the order of operations matters and the homestead and creditor rules are unforgiving of shortcuts. If your situation involves out-of-state property or a Florida estate tied to a New York decedent, our colleagues at the coordinate cross-state administrations regularly. To discuss your matter, you can reach our office, and if you are reviewing or updating an estate plan to avoid these issues in the first place, start with our guidance on wills and estate planning.
Frequently Asked Questions
Can a personal representative sell estate property in Florida without all the heirs agreeing?
Often yes. If the will grants a power of sale, the personal representative can generally sell real estate without unanimous heir consent under Florida Statutes section 733.613(2), though an objecting heir may petition the court. If the will is silent, the representative usually must obtain a court order to sell, and interested persons get notice and a chance to object.
Does a mortgage have to be paid off when selling a house in Florida probate?
Yes. A mortgage survives the owner’s death and remains attached to the property. At closing, the title company and buyer’s lender will require the mortgage and any other liens (judgments, property taxes, code enforcement) to be satisfied from the sale proceeds before the buyer takes clear title.
Is homestead property handled differently in a Florida probate sale?
Significantly. Under Article X, Section 4 of the Florida Constitution, homestead property generally is not a probate asset and passes directly to protected heirs free of most creditor claims. The personal representative usually cannot sell it as estate property; the court typically must determine homestead status, and the heirs who took title sign the deed.
How long does it take to sell real estate during Florida probate?
It varies. A clean sale under a will’s power of sale can move at roughly the speed of any real estate transaction once Letters of Administration are issued. Sales requiring a court petition, a homestead determination, or that face heir objections can take several months longer, especially if litigation arises.
What happens to a pending guardianship sale when the ward dies?
The guardianship closes and a probate estate opens. Any pending sale authorized under Chapter 744 must be re-examined: the new personal representative confirms what the guardianship court actually approved and whether the sale must be completed or re-authorized within the probate. Disputes from the guardianship frequently carry over into the probate.
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For more on our Florida practice, see our overview of probate and estate administration in Florida. Morgan Legal Group's affiliated New York office also handles .
