May 23

Is It Possible To Sell a House During Probate?

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Certainly, a property in Florida, such as in Hillsborough County, can be sold while going through probate.

Although the process may seem intricate, it's typically required for executors and personal representatives handling the estate of a deceased individual.

Knowing the details of how to sell a property in probate can make the process smoother and safeguard the interests of everyone concerned.

In this article, I want to talk about the essential elements of selling a property while going through probate.

Disclaimer: This guide is intended for informational purposes only, not as a substitute for professional legal advice. For specific guidance, consultation with a qualified attorney is recommended.

Conditions to Sell a House During Probate In Florida

Sell a House During Probate In Florida

If you're new to probate, I suggest you read my Beginner's Guide To Probate In Florida.

Selling a house while going through probate entails following certain legal guidelines and acquiring the required permissions from the probate court.

If you're acting as a personal representative, it's your duty to oversee the estate's assets, which may include real estate.

Here are some important considerations you should keep in mind:

1. Selling The Home Before Probate

No one may sell the home before the probate process starts.

There are several reasons for this:

  • Title is technically still in the decedent's name.
  • If you're the personal representative, you still do not have authorization from the court.
  • Ultimately, it's to prevent fraud and misuse.

2. Selling The Home During the Probate Process

Once you receive the letter of testamentary, as the personal representative, you now have the right to act on behalf the decedent's estate.

This includes the right to sell the home during probate.

However, you'll want to check the following:

Was there a Will or Trust?

If there is a Will, it must be submitted to the probate court.

This is done so that the judge can validate the will and give all beneficiaries time to contest the will, if they choose to do so.

Now, if the Will contains a Power of Sale clause, then the personal representative doesn't require a court order to sell the property.

On the flip side, if the Will does not contain the Power of Sale clause, then the personal representative will have to submit something called Petition for Order Authorizing the Sale of Real Property to the court.

In situations where there is no will (intestate), the county court will initiate intestate succession laws.

The same pretty much applies to whether a Trust exists or not.

Was the property the decedent's primary/homestead residence?

If the property was the decedent’s primary residence (homestead), it might qualify for certain exemptions or have specific requirements for sale.

Homestead property in Probate is not considered part of the “Probate Estate.” This confusing aspect of Probate is found under Florida Statute 733.607. It means that the Personal Representative may have no control or ability to sell Homestead property. - The Fund

Did the decedent have a spouse and/or children?

Florida law provides certain protections and rights to surviving spouses and minor children, which can influence the sale process.

Ensuring compliance with these legal protections is necessary to avoid complications.

What if a Florida LLC or corporation owns the property?

If the property is owned by an LLC or corporation, different legal processes and considerations may apply.

The ownership structure can affect how the property is managed and sold during probate.

For example, you may have to figure out the decedent's percentage of ownership.

Steps to Sell a House During Probate

Steps to Sell a House During Probate

If a sale is imminent, you may check out my article on how to get your Florida home ready to sell here.

Nevertheless, below are the basic steps to sell a home during probate:

1. Getting the Property Appraised

The first step is to have the property appraised.

An independent appraisal is often required by the court to establish the fair market value of the property.

This ensures that the property is sold for a reasonable price and helps prevent disputes among beneficiaries.

2. Requesting Permission From The Court To Sell The Home

In certain circumstances, the executor may be required to get permission from the court to sell the home.

To do so, the personal administrator is required to file a petition with the court, as outlined in Florida Statute §733.613(1) and Florida Probate Rule §5.370.

3. Listing the Property for Sale

As the executor, you're responsible for marketing the property effectively to attract potential buyers.

This might involve:

  • Hiring a Tampa real estate agent experienced in probate sales and signing the listing agreement.
  • Using various listing platforms and marketing channels.
  • Preparing the property for showings, which might include minor repairs or staging.

4. Accepting an Offer

Much like an owner selling their own home, the personal representative, in this case, will act accordingly.

If an acceptable offer comes in, the personal representative will sign the purchase agreement and go through the normal course of selling the home...with a couple of major differences.

For example, the buyer's agent may (and probably should) request that the agreement be signed by all beneficiaries as an assurance of closing.

Also, if required, the court may review the sale to ensure that it's being sold at fair market value and that it's in the interest of all parties concerned.

5. Completing the Sale and Distribution of Proceeds

The probate attorney will place the proceeds of the sale into an escrow account until the creditor's claim period lapses.

Once creditors, liens and/or administrative costs are paid, the proceeds will be divided up amongst the heirs.

FAQ's About Selling A Home During Probate

FAQ Selling A House During Probate FL

When selling a house during probate, executors and personal administrators often have several questions about the process.

Here are some of the most frequently asked questions and their answers:

How can you ensure the property is sold at fair market value and handle low offers?

First, I would personally start with getting an appraisal. 

Then, my efforts would go towards finding a specialized Tampa Realtor who understands the unique challenges of selling a probate property and can navigate the legal and emotional aspects involved.

A great real estate agent is also a great marketer. So, their job will be to expose the home to the greatest number of potential buyers, increasing the chances of getting top dollar.

Can the executor or personal administrator live in the house during probate?

Generally speaking - yes.

The executor or personal administrator can live in the house during probate, but it’s important to keep in mind that they must manage the property in the best interests of the estate and its beneficiaries.

Any personal use should not conflict with these duties or delay the sale of the property if that's part of the estate’s plan.

What happens if the house doesn’t sell during probate?

If the house doesn’t sell during probate, the executor may need to reassess the listing strategy, including adjusting the price, improving the property’s condition, or enhancing marketing efforts. 

In some cases, the court may allow for alternative methods of selling the property, such as selling to a cash buyer.

How does the ownership structure impact the probate sale?

Different ownership structures can significantly affect the probate process and the sale of the property.

For example, joint tenancy with rights of survivorship may allow the property to pass directly to the surviving owner, bypassing probate altogether.

Tenants in common, on the other hand, may require the probate process to determine each party's share.

Are there any restrictions on who can buy the house?

Generally, there are no restrictions on who can buy the house during probate, but the sale must be conducted in a way that is fair and transparent.

The executor must ensure that the property is sold for a price that reflects its fair market value.

In some cases, family members or beneficiaries might have the opportunity to purchase the property, provided they comply with the court’s requirements.

What if there are disagreements among beneficiaries about the sale?

Disagreements among beneficiaries can complicate the sale process.

The personal administrator should facilitate communication and attempt to resolve conflicts through mediation or negotiation.

If disagreements persist, the court may need to intervene to ensure the sale proceeds in accordance with probate laws and the decedent’s wishes.

How long does the probate sale process typically take?

Once the letter of testamentary is issued, the personal administrator may proceed with the sale of the property.

However, the length of the probate sale process can vary widely depending on factors such as the complexity of the estate, the need for court approvals, and the time required to settle any disputes.

On average, the process can take anywhere from several months to over a year.

Final Thoughts

Selling a house during probate in Hillsborough County, including Tampa and its surrounding areas, involves several steps and careful management.

Obtaining an independent appraisal and hiring a specialized Realtor with probate experience are crucial for ensuring a fair market value and effective sale process. 

By understanding the process, potential challenges, and common questions, executors can navigate the sale more efficiently.

Consulting with legal and financial professionals ensures compliance with probate laws and provides necessary support.

Legal Disclaimer

This information is not intended as legal advice. Executors should consult a qualified attorney for specific legal matters related to probate and property sales.


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