Can you sell a house that's in probate in Florida? Yes, and who signs depends on whether it was your parent's homestead. Two sets of signatures follow.
Can you sell a house that's in probate in Florida? Yes, and a probate house often sells before the estate itself is finished. Florida decides who signs for it, and that depends on whether it was your parent's homestead.
StepUpLaw has the guide behind this episode. A homestead is not probate property under section 733.608, and with a spouse and children, section 732.401 gives the spouse a life estate and the children a vested remainder, so every one of them signs. The spouse has six months to elect an undivided half interest instead. Any other house is probate property, and under section 733.613 a will that grants the power to sell real property needs no court order. Without it, no title passes until the probate judge confirms the sale.
Can an executor sell a house without probate? The executor needs letters of administration first, and they often issue within a few weeks of filing. Can you sell a house while waiting for probate? A buyer can sign a contract contingent on court approval while the petition is pending.
Transcript
A woman called this week because her father died in March, the house has a buyer’s agent already asking to show it, and she typed the question into her phone at midnight. Can you even sell a house in probate in Florida, or does everything sit frozen until a judge says otherwise. The house was still full of his furniture. Nobody had touched the mail.
Here is what settles that question. Florida does not freeze the house, it decides who is allowed to sign for it. That comes down to one fact you can check today, whether the house was your parent’s own home or a second property, and two different sets of signatures follow from the answer. This episode walks through both doors, what has to happen before either one opens, and the one mistake that voids a sale after it closes.
Yes, the house can be sold, and it often sells before the estate itself is finished. But signing a deed takes legal authority, and the day your parent died, whatever authority they had over that house died with them. Florida gives that authority back to somebody, just not automatically to whoever shows up with a key.
The first thing to check is whether the house was your parent’s homestead, meaning the home they actually lived in. Section 733.608 of the Florida Statutes pulls protected homestead out of the assets in the personal representative’s hands entirely. It is not estate property. It passed to somebody else the moment your parent died, and the personal representative has no power to sell it.
If your parent left a spouse and children, section 732.401 splits the homestead automatically. The surviving spouse gets a life estate, meaning the right to live there for life, and the children get a vested remainder underneath it. A sale needs every one of those signatures, the spouse and every remainder beneficiary, not just the spouse alone.
The spouse has an alternative. Within six months of the death, the surviving spouse can elect to take an undivided half interest as a tenant in common instead of the life estate, with the other half going to the children outright. The election has to be recorded, and once it is filed it cannot be taken back. That choice usually turns on whether the spouse wants to sell now or keep living there.
Here is the step people skip, and it is the one that stalls a closing. Nothing in the public record says the house was homestead until a judge rules on it. Florida probate has a specific proceeding to determine homestead status, and the recorded order from that proceeding is what a title company relies on. File that petition early in the case, not the week before closing.
Now the other door. A rental, a second home, a vacant lot, anything that was not your parent’s primary residence is a full estate asset, and the personal representative sells it. How much court involvement that needs comes down to one sentence in the will.
Under section 733.613, if the will gives the personal representative a specific power to sell real property, the sale needs no court authorization and no showing that it is necessary. The representative signs a contract on ordinary terms and closes it the same way any owner would. Most wills written by an attorney carry that sentence for exactly this reason.
Without that power, the same statute still lets the personal representative sell, but no title passes until the court authorizes or confirms the sale. That means a petition, a hearing or a notice period, and an order before the deed can record. Buyers handle this constantly by writing the contract contingent on court approval, so the house can still go under contract while the petition is pending.
One warning applies to both doors. Section 733.610 makes a sale to the personal representative, or to that person’s spouse, agent, or attorney, voidable by any interested party unless the will expressly allowed it or everyone consented after full disclosure. If a sibling serving as personal representative is quietly steering the house to their own name or a low number, that sale can be undone later, and it should be stopped before it closes rather than after.
Timing surprises most families in a good way. Letters of administration, the document proving who has authority, often issue within a few weeks of filing. The house does not wait for the estate to close. You can list it, show it, and negotiate a contract while the rest of the administration runs in the background, as long as the signatures match whichever door the house came through.
The one thing to do this week is pull the deed and read whose name is on it. If it says your parent alone, find out whether that address was where they actually lived, because that single fact decides who signs, what a title company will require, and whether a court order has to come first. My office handles both sides of this, the probate case and the closing, so the house does not sit waiting on paperwork nobody filed.
Read the full guide at stepuplaw.com/selling-a-house-in-probate-florida
Related reading and listening at StepUpLaw
- florida petition to determine homestead
- Florida Letters of Administration, and How to Get Them
- Florida Personal Representative (Executor): The Guide
- Episode 10, What Florida Requires When an Executor Won’t Act
- Episode 15, Does Your Florida Estate Qualify for Summary Administration
- Episode 8, No Spouse, No Kids. Leaving Your Estate to Charity in Florida
Related guides
- florida petition to determine homestead
- Florida Letters of Administration, and How to Get Them
- Florida Personal Representative (Executor): The Guide
Stepping Up is hosted by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. Episodes are general information about Florida law, not legal advice, and listening does not create an attorney-client relationship.
