Who Has the Power to Sell a House Held in a Florida Trust

Who Has the Power to Sell a House Held in a Florida Trust

The successor trustee holds the power to sell real property owned by the trust. The trust instrument grants that power, and the Florida Trust Code confirms it. No court order is required. No beneficiary vote is required unless the trust instrument says otherwise.

A trustee holds legal title to the trust property. Legal title means the trustee can sign a deed, list the property with a broker, and negotiate with buyers. The beneficiaries hold an equitable interest, which is the right to receive distributions, but equitable interest does not give them a signature on the sale.

The word “successor” matters only for timing. The original trustee, usually the person who created the trust, held the same powers during life. When that person died or became incapacitated, the successor trustee stepped in. The successor has every power the original trustee had unless the trust instrument says otherwise.

A trustee owes duties while exercising these powers. Loyalty means the trustee cannot favor one beneficiary over another and cannot buy the property for themselves or sell it to a relative at a discount. Prudence means the trustee must sell at a fair price through a fair process. Keeping beneficiaries reasonably informed is also required. A sale that breaks these duties can be challenged, and the trustee can be held personally liable.

What Has to Happen Before the Listing

Several steps come before the trustee can sign a listing agreement. Missing any of them can delay the closing or expose the trustee to liability.

The settlor’s death must be documented. The trust instrument will say when the successor trustee’s authority begins, and that trigger is usually the settlor’s death. A death certificate is the proof. The title company will want a certified copy.

The trust instrument must be read carefully. Some trusts give a beneficiary the right to purchase the property at fair market value before it is listed. Some trusts require the trustee to distribute the house to a beneficiary rather than sell it. The trustee must follow what the instrument says.

An appraisal or comparative market analysis should come early. The trustee owes a duty to sell at a fair price. Documenting the value at the time of sale protects the trustee if a beneficiary later questions the sale price. A broker’s opinion of value or a licensed appraisal both work.

The property must be ready to transfer. Outstanding liens, delinquent property taxes, and unpaid homeowners association dues all cloud the title. The trustee should order a title search before listing so there are no surprises at closing.

Beneficiaries should be notified of the plan. Florida law does not require beneficiary consent to sell trust property, but the trustee must keep beneficiaries reasonably informed about the administration. A short letter describing the plan to sell, the expected price range, and the intended use of the proceeds is wise. Notification is not a vote, but it reduces the chance of a dispute later.

The Certification of Trust the Title Company Will Ask For

A title company will not ask to see the entire trust. The trust may contain private information about the settlor’s wealth, the identities of all beneficiaries, and instructions for distributions that are no one else’s business. Florida law lets a trustee provide a shorter document instead.

A certification of trust is a signed statement that says the trust exists, names the current trustee, describes the trustee’s powers, and confirms that the trust has not been revoked or amended in a way that removes those powers. The certification is usually one or two pages.

The title company and the buyer are entitled to rely on the certification in good faith. Florida law protects them from claims that the trustee actually lacked authority, so long as they relied on a certification that appeared valid. The certification is not a warranty by the trustee, but a statement of fact.

Preparing the certification takes a careful reading of the trust. The powers section must be quoted or summarized accurately. The date of the trust and any amendments must be correct. The trustee signs the certification.

The certification does not reveal how the sale proceeds will be distributed. The beneficiaries’ names and shares stay private. The buyer learns only what the buyer needs to close the transaction.

A title company may also ask for the death certificate, any amendment that appointed the successor trustee, and proof of the trustee’s identity. These documents together prove the chain of authority from the original settlor to the person signing the deed.

Do the Beneficiaries Have to Agree to the Sale?

The short answer is no, unless the trust instrument requires it. The trustee’s power to sell comes from the trust and the trust code, not from the beneficiaries.

Beneficiaries hold an equitable interest. Equitable interest means they have the right to distributions according to the trust’s terms, the right to an accounting, and the right to enforce the trustee’s duties. Equitable interest does not mean they control what the trustee does with the property.

A beneficiary who disagrees with the sale can object, but an objection is not a veto. The trustee must listen and consider the objection in good faith. If the sale is within the trustee’s powers and serves the purposes of the trust, the trustee may proceed.

Some trust instruments do require beneficiary consent. A trust might say the trustee cannot sell the family home without unanimous consent of the children. A trust might give one beneficiary the right to live in the house for life. A trust might give a beneficiary a right of first refusal to buy the property at appraised value. The trustee must follow whatever the trust says.

A beneficiary who believes the trustee is breaching a duty has the right to go to court. A court can remove a trustee, order an accounting, or award damages. The possibility of court action is the real check on a trustee’s discretion, not a requirement of consent before every decision.

The trustee should document the decision to sell. A written record of the reasons for selling, the price obtained, and the use of proceeds protects the trustee if a beneficiary later files a claim.

Homestead in the Trust: The Sale That May Not Be Yours to Make

A house that was the settlor’s homestead raises a special problem. Florida’s Constitution protects homestead from forced sale by creditors and limits how it can be passed at death. A trust cannot override the Constitution.

Homestead passes by the Constitution’s rule when the owner dies leaving a spouse or minor child. The surviving spouse has a life estate, and the minor child has an interest that cannot be defeated. The trust instrument’s instructions do not control. The trustee may hold the deed, but the property belongs to the spouse or child, not to the trust.

A trustee who tries to sell the homestead in this situation is selling property the trust does not own. The title company will discover the problem when it reviews the trust and the death certificate. A buyer who closes anyway takes title subject to the spouse’s life estate or the child’s interest, which means the buyer could be forced to give up the property.

The solution depends on the facts. If the surviving spouse wants to sell and there are no minor children, the spouse can release the life estate, but the descendants who hold the remainder must also sign the deed. If the surviving spouse wants to keep the house, the trustee cannot force a sale. If there is a minor child, a court proceeding may be required to protect the child’s interest.

The homestead question should be answered before the house is listed. A title search will show whether the property was homestead. A review of the settlor’s family will show whether a spouse or minor child survives. If either flag appears, the trustee should get legal advice before listing the property.

Homestead held in a trust and passing to adult children only, with no surviving spouse and no minor child, can be sold by the trustee without this complication. The Constitution’s forced descent rule does not apply, and the trust’s instructions control.

Where the Money Goes After Closing

The sale proceeds do not go directly to the beneficiaries. The trustee holds the money in the trust and distributes it according to the trust’s terms after paying what the trust owes.

Expenses of administration come first. Taxes on the property, the cost of preparing the house for sale, commissions, title insurance, recording fees, and the attorney’s fee for the administration all reduce what is left to distribute.

Debts of the settlor may come next. Florida law gives creditors a way to reach trust assets if the probate estate is not enough to pay the settlor’s debts. The trustee may have to hold sale proceeds for a period to cover creditor claims before distributing. A trustee who distributes everything immediately and leaves creditors unpaid can be held personally liable for the shortage.

Taxes must be considered. A stepped-up basis, which resets the property’s value to its date-of-death fair market value, usually reduces or eliminates capital gains tax when the house is sold soon after the settlor’s death. Any gain above the stepped-up basis is taxed to the trust or carried out to the beneficiaries with the distribution.

The trust instrument will say when and how the remaining proceeds are distributed. Some trusts call for immediate distribution in equal shares. Some trusts hold funds for a beneficiary until the beneficiary reaches a certain age. Some trusts give the trustee discretion to distribute or withhold. The trustee must follow the terms exactly.

A final accounting to the beneficiaries should show the sale price, every expense, every creditor payment, and the calculation of each beneficiary’s share. Documentation protects the trustee and closes out the administration.

Mistakes That Get a Successor Trustee Sued

A trustee who sells trust property can be sued by a beneficiary for breach of fiduciary duty. The most common mistakes involve self-dealing, carelessness, and poor communication.

Self-dealing is the clearest breach. A trustee who sells the house to themselves, to a family member, or to a business partner at a discounted price is violating the duty of loyalty. The trustee must treat the sale as an arm’s length transaction with an unrelated buyer at fair market value. A sale to an insider, even at full price, will be scrutinized closely.

Selling below market value is a breach of prudence. A trustee who accepts the first offer without testing the market, or who fails to get an appraisal, may be liable for the difference between what the house sold for and what it should have sold for. The trustee must be able to show that the price was fair.

Failing to inform beneficiaries leads to suspicion and litigation. A beneficiary who learns about a sale only after it closes will assume the trustee had something to hide. A trustee who keeps beneficiaries reasonably informed, even when their consent is not required, is less likely to face a lawsuit.

Distributing proceeds before paying debts and expenses exposes the trustee to personal liability. If the probate estate is short and the trustee has already paid out everything to the beneficiaries, the trustee may have to pay creditors out of pocket.

Missing a conflict of interest is dangerous. A trustee who is also a beneficiary, or who is selling to a relative, should get independent legal advice or consider resigning in favor of a neutral party. Conflicts that look minor at the time can become expensive later.

What Trust Administration Costs

Trust administration after a death is quoted as a flat fee at the consultation. The fee depends on the complexity of the trust, the number of assets, and whether there are disputes among beneficiaries.

The administration fee covers reviewing the trust instrument, preparing the certification of trust for the title company, advising the trustee on the sale process, preparing a final accounting, and distributing the proceeds according to the trust’s terms. Recording fees and other government costs are additional and passed through at cost.

Trustee disputes, including claims that a trustee breached a duty or sold the house improperly, are quoted per matter. Litigation is never a flat fee.

A free 30-minute consultation by phone, Zoom or WhatsApp is the place to start. The consultation covers your situation and gives you a clear fee quote before any work begins.

Frequently Asked Questions

Common Situations

A daughter was named successor trustee of her late mother’s revocable trust. The trust held a condominium in Florida. The daughter listed the property with a broker and received an offer. The title company asked for a certification of trust, a death certificate, and the daughter’s identification. The daughter’s attorney prepared the certification, and the sale closed without probate. The proceeds were distributed to the beneficiaries according to the trust’s terms.

A brother was named successor trustee of a trust that held the family home. The brother sold the house to his own adult son at a price below the appraised value. The brother’s sister, a beneficiary, sued the brother for breach of the duty of loyalty. The lawsuit alleged that the sale was not at arm’s length and that the brother had put his son’s interest ahead of the beneficiaries.

Sources of Law

• Specific powers of a trustee, including sale: Fla. Stat. §736.0816 (annotated)
• Duty to inform and account: Fla. Stat. §736.0813 (annotated)
• Notice of trust: Fla. Stat. §736.05055 (annotated)
• Certification of trust: Fla. Stat. §736.1017 (annotated)
• Trustee powers on the face of a deed: Fla. Stat. §689.073
• Trust liable for estate expenses and claims: Fla. Stat. §733.707(3)
• Duty of loyalty: Fla. Stat. §736.0802
• Distribution on termination: Fla. Stat. §736.0817 (annotated)

Related Guides

Florida trust administration · Certification of trust · Trustee fees · Selling a house in probate · Homestead in a revocable trust

What I Tell a New Successor Trustee Before the Listing Goes Up

In 14 years of law practice, I have seen successor trustees sell houses smoothly and I have seen them get sued for the way they did it. The difference usually comes down to whether the trustee understood the duties that travel with the title.

I have a few take-home points.

The first is that the power to sell does not mean the power to sell however you like. A trustee owes loyalty and prudence. Loyalty means you cannot sell the house to yourself, to your child, or to a business partner at a discount. Prudence means you must get an appraisal or broker’s opinion and test the market before accepting an offer. A trustee brother who sold the family home to his own son below appraised value was sued by his sister for breach of the duty of loyalty. The lawsuit alleged that the sale was not at arm’s length.

The second is that beneficiaries do not vote, but they do watch. Florida law does not require their consent unless the trust says so, but the trustee must keep them reasonably informed. A short letter describing the plan to sell, the expected price, and the intended use of proceeds costs nothing and reduces the chance of a lawsuit later.

Avoid distributing sale proceeds to beneficiaries before expenses and creditor claims are settled. A trustee who pays out everything and then learns the probate estate was short can be held personally liable to the creditors.

One honest limit is that a house that was the settlor’s homestead, passing to a surviving spouse or minor child, may not be the trustee’s to sell at all, and I cannot change what Florida’s Constitution says.

Kevin D. Klagge, Esq., admitted in Florida since 2012. General information rather than advice on your situation.

Updated on October 29, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice, and no attorney-client relationship is created. Do not send confidential information until we have agreed to represent you.