It is not rare to find probate cases that take up to two years to complete. In such cases, it may be hard for a surviving spouse or an heir to wait until the probate process is over to execute a real property.
In this article, you will find out whether it is possible to sell a house before probate in Florida.
Can You Sell a House Before Probate in Florida? – As Provided by Law
Many Florida residents think that it is impossible to sell or execute a real property that is part of a probate estate before the administration is closed. However, this is not true.
As long as the court adjudicating the case approves the transaction, Florida law permits a personal representative to sell a house before closing probate administration. An executor may sell a house even if there is no express language in the decedent’s will.
Florida Statutes §733.613(1) provides that “when a personal representative (…) whose testator has not conferred a power of sale or whose testator has granted a power of sale but the power is so limited by the will or by operation of law that it cannot be conveniently exercised, shall consider that it is for the best interest of the estate and of those interested in it that real property be sold, the personal representative may sell it at public or private sale.”
Please note that this type of transaction cannot be closed without the court’s approval. Florida Statutes §733.613(1) adds that “no title shall pass until the court authorizes or confirms the sale. No bona fide purchaser shall be required to examine any proceedings before the order of sale.”
Is Court Intervention Always Necessary?
The situation is even simpler if the provisions in the decedent’s will include language authorizing the sale.
Florida Statutes §733.613 (2) expressly state that an executor can sell, mortgage, or lease real property of the deceased’s estate without court authorization or confirmation – as long as the will confers “specific power to sell or mortgage real property or a general power to sell any asset of the estate.”
The same statute adds that the property can be sold in whole or part “for cash or credit, or for part cash and part credit, and with or without security for unpaid balances.”
In such cases, the personal representative is not required to demonstrate that the transaction is in the best interest of the estate or beneficiaries, as “the sale, mortgage, or lease need not be justified by a showing of necessity, and the sale pursuant to power of sale shall be valid.”
Selling a House Before Florida Probate is Complete – An Overview
Once the personal representative finds a buyer for the property, he or she is responsible for signing the contract and closing the deal. If the house sold is homestead property, each of the property’s heirs must sign the contract as well.
After the contract is signed and the deposit is held in escrow, the court will verify the transaction. This step is necessary only if the decedent’s will has no express language authorizing the executor to sell the property.
While the rest of the process is ongoing, the proceeds from the sale will continue in an escrow account until the creditors’ claims period is over. During this period, the buyer receives the property’s full ownership with a clear title.