Yes, you can sell a house during probate in Florida, and you usually don’t have to wait for the estate to close. But no one can sign a deed until the court has given someone the authority to sell. That person is usually the personal representative, and whether they also need a judge’s approval depends on what the will says. The biggest variable is whether the house was the owner’s homestead: Florida treats a protected homestead differently from every other asset, and it is often sold by the heirs rather than by the personal representative. Knowing which path your property is on tells you who signs, what the court has to approve, and how long the sale is likely to take.
Who Has the Authority to Sell
1. The Personal Representative, Once Appointed
When someone dies owning a house in their own name, the title doesn’t pass to the family automatically. Probate has to be opened, and the court has to appoint a personal representative (Florida’s term for an executor) and issue letters of administration. Until then, no one has the legal authority to sign a listing agreement or a deed for the estate, not even the person named as executor in the will.
Once appointed, the personal representative takes control of the decedent’s Florida property other than protected homestead (Fla. Stat. § 733.608). That includes keeping the house insured, paying the mortgage and taxes from estate funds, and maintaining it until it’s sold or distributed.
2. A Will With a Power of Sale
Many wills give the personal representative a “power of sale.” When the will includes one, the personal representative can sell estate real property without asking the court to authorize or confirm the sale (Fla. Stat. § 733.613). That is usually the fastest path. The personal representative still owes the beneficiaries a duty to get a fair price and to account for the proceeds.
3. A Court Order When There’s No Power of Sale
If there’s no will, or the will doesn’t grant a power of sale, the personal representative can still sell, but needs the court’s approval. Under the same statute, no title passes until the court authorizes or confirms the sale. In practice, that means a petition to the court, notice to interested people, and an order before closing, which adds time to the sale.
Either way, the buyer is protected: a buyer who purchases under a court order or a will’s power of sale generally takes title free of the estate’s creditor claims and the beneficiaries’ interests, though existing mortgages and liens still have to be paid off at closing.
4. Smaller Estates: Summary Administration
Some estates qualify for summary administration instead of formal administration: generally, when the estate (not counting property that’s exempt from creditors, such as protected homestead) is worth $150,000 or less, or the person died more than two years ago (Fla. Stat. § 735.201). There’s no personal representative in summary administration. Instead, the court’s order distributes the property to the beneficiaries, who can then sell it themselves. Our post comparing summary and formal administration explains which estates qualify.
What Can Complicate or Delay the Sale
When the House Was the Owner’s Homestead
This is the issue that changes the most. If the house was the owner’s Florida homestead and it passes to a spouse, children, or other heirs, it’s usually “protected homestead.” Protected homestead isn’t an estate asset the personal representative controls (Fla. Stat. § 733.608). It passes directly to the heirs, generally free of the estate’s creditors.
To sell it, the family usually asks the probate court for an order determining homestead. That order tells the title company who now owns the home. Then the owners sign the deed together: the heirs, plus a surviving spouse who holds a life estate or a share. If one heir won’t sign, the sale stalls, and the remaining options can include a partition action. Our post on partition actions and probate estates covers how that works.
One caution: if the owner left no spouse or minor child and the will directs the personal representative to sell the home and divide the money, the house can become a regular estate asset. That changes who signs, and the sale proceeds may be available to pay estate creditors. For more on how homestead rules work, see what Florida’s homestead law actually protects.
The Creditor Period
After notice to creditors is first published, creditors generally have three months to file claims, or 30 days from being served with the notice, if that’s later (Fla. Stat. § 733.702). A personal representative can often sell before that period ends. But some title companies want the claims period to have run, or ask for proof of how claims will be paid, before they’ll insure the sale. Florida also bars most claims entirely two years after the date of death, though recorded mortgages are not affected (Fla. Stat. § 733.710).
The Mortgage, Taxes, and Insurance
A mortgage doesn’t go away when the owner dies, and the lender can still foreclose if payments stop. Federal law generally keeps a lender from calling the loan due just because the house passed to a relative at death, but someone still has to keep the loan current until closing. The same goes for property taxes and HOA dues. Insurance is easy to overlook: many homeowner’s policies limit coverage once a home has sat vacant for a set period, so tell the insurer the owner has died and the house is empty.
Capital Gains
Heirs and estates usually get a “step-up” in basis: the home’s tax basis resets to its value on the date of death. If the house sells soon afterward for close to that value, there’s often little or no capital gains tax. Our post on step-up in basis in Florida probate explains the details, and a CPA should confirm the numbers for your situation.
How This Plays Out in Practice
A will with a power of sale: a mother leaves a rental condo to her three children, and her will gives her son, as personal representative, a power of sale. Once he receives letters of administration, he can list and sell the condo without a court order, pay the estate’s bills from the proceeds, and distribute what’s left to the three siblings.
No will: a father dies without a will, owning a vacant lot in his own name. His daughter is appointed personal representative, but because there’s no power of sale, she has to petition the court and get an order authorizing the sale before the buyer’s title company will close.
A homestead with two heirs: a widow dies owning her Plantation home, survived by two adult sons. The home is protected homestead, so it passes to the sons outside the estate. After the court enters an order determining homestead, both sons sign the deed to sell. If one refuses, the sale can’t close until they agree or a court orders a partition.
A smaller estate: an uncle who died three years ago left a modest property and little else. His family can use summary administration, receive the property by court order, and sell it themselves without anyone being appointed personal representative.
When to Speak with a Probate Attorney
Most delays in a probate sale come from finding out late that the house is on a different path than the family assumed: homestead when everyone thought it was an estate asset, no power of sale when everyone thought there was one, or a title company that wants an order nobody asked for. Sorting that out before you sign a listing agreement or accept an offer saves weeks, and sometimes the deal itself.
If you’ve lost someone who owned a Florida home and the family needs to sell it, a conversation with a probate attorney can map out who signs, what the court needs to approve, and a realistic timeline. Learn more about our probate services.
Frequently Asked Questions
Can I sell my parent’s house before probate is opened? Generally, no, if the house was in your parent’s name alone. Someone needs legal authority to sign the deed, and that comes from the probate court. The exceptions are homes that pass outside probate, such as a house held in a trust, owned jointly with a right of survivorship, or covered by an enhanced life estate (Lady Bird) deed.
Do all the heirs have to agree to sell? It depends. For a non-homestead house sold by a personal representative with a power of sale or a court order, the personal representative makes the decision, subject to their duties to the beneficiaries. For protected homestead, the heirs own the home, so every owner generally has to sign.
How long does it take to sell a house in probate in Florida? Usually several months at least. Opening probate and getting letters takes time, a court order adds more if the will has no power of sale, and the creditor period runs at least three months from first publication. With a power of sale, a sale can sometimes close while the rest of the estate is still open.
Can I live in the house while it’s in probate? Possibly, but talk to the personal representative and the attorney first. If the house is an estate asset, the personal representative is responsible for it, and an heir living there rent-free can raise fairness questions with the other beneficiaries.
What if the owner lived out of state but owned a house in Florida? The Florida property usually needs its own Florida proceeding, called ancillary administration, even if the main estate is being handled in another state.
How do I avoid this for my own family? Holding your home in a revocable trust, or using an enhanced life estate deed, can let it pass and be sold without probate. Our post on whether you should put your house in a trust walks through the trade-offs.
About This Article
Written by Samantha Fitzgerald, Esq., Founder & Managing Attorney at SJF Law Group.
Learn more about our probate services, or read our related posts on step-up in basis in Florida probate and what Florida’s homestead law actually protects.
