Selling estate real estate during Florida probate means transferring a deceased owner’s house, condo, or land while the estate is under court supervision. Whether the personal representative can sign a deed without a judge’s permission depends almost entirely on one thing: whether the decedent’s will grants a power of sale. With that power, a sale can close like any ordinary closing; without it, the court must authorize or confirm the transaction under Florida Statute §733.613.
If you are administering an estate in Miami-Dade, Broward, or Palm Beach County and the largest asset is real property, the path to a clean closing is more technical than most heirs expect. Below is how it actually works, in the order the questions usually come up.
Who has the authority to sell estate property in Florida?
Only the personal representative (Florida’s term for an executor or administrator) can sell estate real estate, and only after the probate court issues Letters of Administration. The letters are the document a title company and closing agent will demand before anyone signs a contract. Beneficiaries, even if they all agree, cannot list or convey the house on their own while it remains an estate asset.
Practically, this means the first step in selling probate real estate is opening the estate, not calling a real estate agent. I have watched grieving families sign listing agreements within a week of a funeral, only to discover the contract is unenforceable because no one yet held legal authority to sell. Get appointed first.
The two paths: power of sale versus court authorization
Florida draws a sharp line that determines the entire process:
- The will grants a power of sale. Under §733.613(1), when a will confers a specific power to sell or mortgage real property, or a general power to sell any asset of the estate, the personal representative may sell, mortgage, or lease the property without authorization or confirmation of court. This is the smooth path. A well-drafted Florida will almost always contains this clause.
- No will, or no power of sale. When the decedent died intestate, or the will is silent on selling real property, the personal representative must petition the court for an order authorizing or confirming the sale under §733.613(2). The petition typically must show the sale is necessary to pay debts, taxes, and costs of administration, or that it serves the beneficiaries’ best interests.
A common misconception is that §733.612, the broad list of transactions a personal representative may undertake, covers real estate. It does not. That statute expressly excludes real property. Real estate sales live in §733.613, and that distinction trips up even some out-of-state practitioners. The challenges of moving estate property through court oversight echo the broader that families encounter regardless of state.
Homestead property: the trap that stops most sales
South Florida estates are dominated by homestead property, and homestead is where good intentions collide with the Florida Constitution. A decedent’s primary residence that qualifies as constitutional homestead generally is not a probate asset that the personal representative can simply sell. Instead, it passes outside the estate to the protected heirs under Article X, §4 of the Florida Constitution and §732.401.
That changes everything about a sale:
- The personal representative usually cannot convey homestead under a will’s power of sale, because the property never became an estate asset in the first place.
- To sell, you typically need the court to enter an Order Determining Homestead Status of Real Property, which fixes who actually owns it.
- Once homestead status and the heirs are established, those heirs, often a surviving spouse plus children, must all join the deed at closing.
If a surviving spouse and minor children are involved, the constitutional restrictions on devising homestead can reshuffle ownership entirely, sometimes creating a life estate or the statutory election available under §732.401(2). Selling before the homestead question is resolved is a recipe for a title defect that surfaces years later. Determine homestead status first, then sell.
Non-homestead real estate: condos, rentals, and land
Vacation condos, investment rentals, commercial buildings, and vacant lots are ordinary probate assets. These are far simpler. With a power of sale in the will, the personal representative can market and close them without a court hearing, subject to fiduciary duties. This is why the editorial focus on real-property-heavy estates matters so much in Florida: the same family often holds a homestead in Boca Raton governed by constitutional protection and a rental in Fort Lauderdale governed by routine sale authority, and the two cannot be handled the same way.
The personal representative’s fiduciary duties when selling
Having authority to sell is not the same as having freedom to sell however you like. A personal representative is a fiduciary and must act for the benefit of all interested persons. Several duties bear directly on a real estate sale:
- Obtain fair value. The price should reflect the market. Get an appraisal or a broker’s price opinion and keep it in the file. A bargain sale to a friend is exactly the kind of transaction beneficiaries challenge.
- Avoid self-dealing. Under §733.610, any sale or transfer involving the personal representative’s own interest is voidable by an interested person unless the will authorized it, all interested persons consented, or the court approved it after notice. Translation: a personal representative generally cannot buy the estate’s house themselves without explicit permission.
- Account for the proceeds. Sale proceeds belong to the estate and flow through the administration to creditors and then beneficiaries. They are not the personal representative’s to distribute on a handshake.
- Treat beneficiaries even-handedly. Where heirs disagree about whether to sell or keep a property, the representative must navigate the conflict prudently rather than favoring one branch of the family.
When beneficiaries believe a sale was below market, conducted in secret, or tainted by self-interest, disputes escalate quickly, and the underlying will itself can come under attack. The mechanics of those challenges resemble the way in other jurisdictions, where allegations center on breach of duty, undue influence, or improper administration.
A practical timeline for selling probate real estate in South Florida
Here is the sequence I walk Florida clients through when real property must be sold:
- Open probate and get appointed. File the petition for administration in the county where the decedent lived. Wait for Letters of Administration.
- Read the will for a power of sale. This single clause decides whether you need the court for each transaction.
- Resolve homestead. If the property was the decedent’s residence, petition for an order determining homestead status before listing it.
- Value the property. Order an appraisal or broker opinion to support the price and protect against later claims.
- List, contract, and disclose. Market the property and disclose the estate sale to buyers and the title company up front.
- Obtain a court order if required. With no power of sale, secure authorization or confirmation under §733.613 before or after the contract, depending on local practice.
- Close and hold proceeds in the estate. Deposit net proceeds into the estate account; do not distribute prematurely while the creditor period and tax obligations remain open.
Title underwriters in Florida scrutinize estate deeds closely. Missing letters, an unresolved homestead determination, or a deed signed by fewer than all required heirs will stall or kill a closing. Coordinating the probate filings with the title work early prevents the last-minute scramble that delays so many South Florida estate sales.
Creditors, the closing, and the order of payment
Florida gives creditors a defined window to file claims after notice. Real estate proceeds are a primary source for satisfying valid claims, administration costs, and taxes before beneficiaries receive anything. Selling does not extinguish that priority. If an estate sells the house and distributes the cash immediately, then a valid creditor claim arrives, the personal representative can be personally exposed. The disciplined approach is to keep proceeds in the estate account until the claims period closes and obligations are accounted for.
For estates with property in more than one state, or for families weighing whether to sell at all, it helps to coordinate strategy with counsel who handle these estates daily. Morgan Legal’s Florida team addresses these issues through its , and our office regularly guides South Florida families through real-property-heavy administrations.
If you are facing a sale, start by understanding your authority, confirm the will’s power of sale, and resolve homestead before you list. When you are ready to map your specific estate, our Florida probate attorneys can review the will and the title in a single sitting. You can also reach the firm directly through our contact page.
The bottom line
Selling estate real estate during Florida probate is entirely doable, and often the right financial decision, but it runs on rules that punish shortcuts. Confirm the personal representative’s authority, identify whether the will grants a power of sale, treat homestead as a separate constitutional problem, document fair value, avoid self-dealing under §733.610, and keep proceeds in the estate until the administration permits distribution. Handle those six things in order and the closing becomes routine. Skip one and a title defect or a beneficiary dispute can undo the whole sale.
Frequently Asked Questions
Can a personal representative sell a house during Florida probate without going to court?
Yes, if the decedent’s will grants a power of sale. Under Florida Statute 733.613(1), a will conferring a specific power to sell real property or a general power to sell any estate asset lets the personal representative convey non-homestead real estate without court authorization or confirmation. If there is no will or no power of sale, the court must authorize or confirm the sale.
Why is homestead property different when selling during probate?
Constitutional homestead generally passes outside the estate to protected heirs under Article X, Section 4 of the Florida Constitution and Section 732.401, so it is usually not an asset the personal representative can sell under the will’s power of sale. The court typically must enter an Order Determining Homestead Status first, and the heirs who actually own the property must join the deed at closing.
Can the personal representative buy the estate's real estate themselves?
Almost never without permission. Section 733.610 treats self-dealing as voidable by any interested person unless the will expressly authorized it, all interested persons consented, or the court approved the purchase after notice. A personal representative who buys estate property on their own invites a challenge and potential personal liability.
What happens to the money after estate real estate is sold in Florida?
Net proceeds belong to the estate, not to the personal representative or beneficiaries directly. They are held in the estate account and applied first to creditor claims, taxes, and administration costs before any distribution to beneficiaries. Distributing too early, before the creditor claim period closes, can expose the personal representative personally.
How long does it take to sell a house in Florida probate?
It depends on the path. With a power of sale and non-homestead property, the sale can proceed on a normal real estate timeline once Letters of Administration are issued. Homestead determinations, court authorization for sales without a power of sale, and the creditor claim period can each add weeks to months, so coordinating the probate filings with the title work early is essential.
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