Selling Estate Real Estate During Florida Probate: A Palm Beach Attorney’s Guide

Selling estate real estate during Florida probate means a court-appointed personal representative transfers a deceased owner’s real property to a buyer while the estate is still open. Whether the sale needs a judge’s signoff depends almost entirely on one thing: did the will grant a power of sale? If it did, the personal representative can usually sell without prior court approval under Florida Statute § 733.613; if it did not, the court must authorize or confirm the sale before title can legally pass.

That single distinction drives the timeline, the paperwork, and the risk on nearly every probate sale we handle in Palm Beach County. The rest is detail, and the detail is where deals die. Below is how it actually works, written for executors, heirs, and buyers who need the property sold without a title defect surfacing two years later.

Who has the authority to sell real property in a Florida estate?

Only the personal representative (Florida’s term for an executor or administrator) can sell estate-owned real property, and only after the court issues Letters of Administration. Heirs and beneficiaries do not have signing authority during administration, even if they expect to inherit the home outright. A deed signed by a beneficiary who has not been appointed is, in practical terms, worthless to a title underwriter.

Florida law splits the personal representative’s selling power into two paths, and you need to know which one you are on before you list anything.

Path one: the will grants a power of sale

Under § 733.613(1), when the will confers a specific power to sell real property, or a general power to sell any asset of the estate, the personal representative may sell, mortgage, or lease the real property without court authorization or confirmation. The sale does not have to be justified by a showing of necessity. A buyer who closes under a valid power of sale takes title free of the claims of estate creditors and the entitlements of beneficiaries (existing mortgages and liens, of course, still survive).

This is the cleaner path. Most professionally drafted Florida wills include a power of sale precisely to keep the executor out of the courthouse for routine transactions.

Path two: no power of sale, or an intestate estate

If the decedent died without a will (intestate), or the will granted no power of sale, or the power is so limited it cannot conveniently be exercised, then § 733.613(2) controls. Here the personal representative may still sell at public or private sale, but no title passes until the court authorizes or confirms the sale. The personal representative files a petition that sets out the reasons for the sale, a legal description of the property, and the price and terms. The judge reviews it, interested parties get notice, and an order issues.

Court confirmation adds weeks, sometimes months. It also adds a layer of scrutiny that becomes very useful when the estate is contested.

Homestead changes everything

Florida’s homestead protection is the trap that catches more probate sales than any other single issue. Under § 733.607, the personal representative takes control of the decedent’s real property to preserve it — except protected homestead. Constitutionally protected homestead is not a probate asset at all. The personal representative generally has no administrative authority over it.

Why that matters when you want to sell:

• Title vests in the heirs at the moment of death. If the property qualifies as protected homestead, ownership passes by operation of law to the surviving spouse and/or descendants, not into the estate. Those heirs — not the personal representative — are the sellers.
• It is shielded from most creditors. Protected homestead, and the proceeds of its sale, pass to the heirs free of the claims of the decedent’s general creditors. That protection is one of the strongest in the country, and it survives the owner’s death.
• You usually need a court order determining homestead status. Title companies want a Petition to Determine Homestead Status of Real Property and a resulting court order before they will insure a sale. Without it, the property’s character is ambiguous and the deal stalls.

The recurring mistake is treating the family home like an ordinary estate asset and having the personal representative sign the deed. If the home was protected homestead, that signature may convey nothing. Determine homestead status first; sell second.

Creditor claims and where the money goes

Estate creditors do not vanish because a buyer shows up with cash. Florida’s claims process runs roughly 90 days from the first publication of the Notice to Creditors (the periods and bars live in §§ 733.702–733.710). On non-homestead real property, that has a direct effect on closing proceeds.

Standard practice: the personal representative’s attorney holds the net sale proceeds in escrow through the creditor claims period. Once the window closes and any timely claims are resolved or paid, the remaining funds are distributed under the will or under Florida’s intestacy statutes. Sell early in the administration and the heirs may wait months for their share, even though the property itself closed quickly. Set that expectation with the family up front; it prevents a lot of angry phone calls.

The step-by-step path to a clean closing

Here is the sequence we follow on a typical Palm Beach probate sale:

1. Open the estate and get appointed. File the petition, obtain Letters of Administration. No Letters, no authority, no sale.
2. Classify the property. Homestead or not? Sole ownership, tenancy in common, or something held in a way that bypasses probate entirely? This determines who can sign.
3. Resolve homestead. If the home may be protected homestead, file the petition to determine status and obtain the order.
4. Confirm your selling authority. Power of sale in the will, or a § 733.613(2) court authorization petition.
5. List and contract. Use a contract with a probate addendum and realistic timelines; disclose the estate’s status to the buyer.
6. Clear title and creditor exposure. Order a title commitment early; address the Notice to Creditors and escrow arrangements.
7. Close and escrow proceeds. The personal representative signs the deed (or the homestead heirs do), and net proceeds are held until the claims period clears.

If you want to understand how the underlying instruments interact, our overview of Florida wills and powers of sale and our Florida probate process guide walk through the documents in plainer terms.

Selling when the estate — or the guardianship before it — is contested

This is the area where Palm Beach families come to us most often. Many of these properties were already the subject of a guardianship while the owner was alive, and the same relatives who fought over the conservatorship now fight over the sale. When a guardianship transitions into a probate estate, old grievances and old accountings come with it.

Several things change the moment a sale is contested:

• Court confirmation becomes your friend. Even where a power of sale would let the personal representative act alone, seeking a § 733.613(2) confirmation order with full notice can insulate the sale from a later challenge. A confirmed sale is far harder to unwind.
• Self-dealing draws fire. A personal representative who sells to a relative, a friend, or an LLC they control invites a breach-of-fiduciary-duty claim. Arm’s-length, marketed, and documented is the standard. Comparable sales and a defensible price matter.
• Beneficiaries can seek to enjoin a closing. If an heir believes the property is being undersold or sold improperly, they may move to stop it. Buyers should know an estate is in litigation before they remove inspection contingencies.
• Lis pendens and pending litigation cloud title. A recorded notice of contest can freeze a transaction until the dispute is resolved.

Florida’s litigation framework around contested estates and will challenges has close analogues in other states, and the strategic playbook overlaps considerably. Morgan Legal’s New York team handles parallel disputes through its , and the procedural mechanics of getting an estate administered are laid out in their guide to . For Florida-specific representation on the same issues, the firm’s covers local procedure.

Common ways probate real estate sales go wrong

A short list of the failures we see repeatedly:

• Listing before Letters of Administration are issued, then losing the buyer to delay.
• Treating protected homestead as an estate asset and signing a defective deed.
• Skipping court confirmation on an intestate or no-power-of-sale estate — the buyer’s title is not marketable.
• Distributing proceeds before the creditor claims period closes, leaving the personal representative personally exposed.
• Selling to an insider without an appraisal or marketing, handing contestants a ready-made fiduciary claim.

Each of these is avoidable with sequencing and documentation. The deed you sign in month three is only as good as the authority and title work behind it.

The bottom line for Palm Beach executors and heirs

Selling estate real estate in Florida is entirely doable, often quickly, when you confirm authority first, settle homestead status, respect the creditor window, and document a fair, arm’s-length process. The order of operations is what protects the sale. When the estate is contested — especially one that grew out of a bitter guardianship — the safest path is the more formal one: court confirmation, full notice, and a paper trail that makes the transaction nearly impossible to attack.

If you are a personal representative or heir trying to sell a home in an open Florida estate, talk to a probate attorney before you sign a listing agreement. A short conversation about authority and homestead at the start saves a six-figure title problem at the end. Reach our office through the contact page to discuss your specific property.

Frequently Asked Questions

Can a personal representative sell Florida real estate without court approval?

Yes, if the will grants a specific or general power of sale. Under Florida Statute 733.613(1), the personal representative may then sell without court authorization or confirmation. If there is no power of sale, or the decedent died intestate, 733.613(2) requires court authorization or confirmation before title can pass.

Do you need court permission to sell a homestead during Florida probate?

Protected homestead is not a probate asset, and the personal representative generally has no authority over it. Title vests in the heirs at death, so they are the sellers. In practice you still file a petition to determine homestead status and obtain a court order, which title companies require before insuring the sale.

What happens to the proceeds when you sell estate real estate during probate?

For non-homestead property, the net proceeds are typically held in escrow by the estate’s attorney through the creditor claims period (about 90 days after the Notice to Creditors). Once timely claims are resolved, the remaining funds are distributed under the will or Florida intestacy law.

Can heirs stop the sale of a contested estate's real property?

Yes. A beneficiary who believes the property is being undersold or sold improperly can object, seek to enjoin the closing, or record a notice that clouds title. This is why seeking a court-confirmed sale with full notice is often the safest route when an estate is in dispute.

How long does it take to sell a house in Florida probate?

With a power of sale and clear title, a non-homestead sale can close in a few months. Estates needing court confirmation, homestead determination, or litigation over a contested guardianship-to-probate transition take longer, and proceeds may still be held until the creditor period closes.