A Realtor’s Guide to Representing a Seller or Buyer of Probate Property

Probate real estate can be sold, but the most important question is who has legal authority to sign. A Realtor should not assume that the heir, family member, or person named in the Will can automatically sign the listing agreement, contract, or deed. In Florida, a Personal Representative’s powers begin when the court appoints that person, not merely because the person is named in the Will.

This guide is intended as a practical overview, not legal advice. Probate, homestead, and trust issues should be reviewed by a probate or real estate attorney before the property is listed or placed under contract.

1. Is there a Will?

If there is a Will, find out who is named as the Personal Representative. The Personal Representative is similar to what many people all an “executor.” However, the person generally needs to be appointed by the probate court before they have authority to act for the estate.

Once appointed, the Personal Representative is usually the person who signs documents on behalf of the estate, including listing agreements, sale contracts, closing documents, and the deed.

If there is no Will, the estate is called an intestate estate. In that situation, an interested person may ask the court to appoint a Personal Representative. The court will then enter an order appointing the person who has authority to act for the estate.

Realtor takeaway

Before taking the listing, ask for proof of authority. That usually means court paperwork showing that the Personal Representative has actually been appointed.

2. Does the Will give the Personal Representative power to sell real estate?

Some Wills include language giving the Personal Representative authority to sell real property. This is often called a power of sale.

If the Will gives the Personal Representative authority to sell real estate, the property may generally be listed and sold without getting a separate court order approving the sale, as long as the property is estate property and not protected homestead. Florida law provides that when a Will gives the Personal Representative a specific power to sell real property, or a general power to sell estate assets, the Personal Representative may sell without court authorization or confirmation.

If the Will does not give that authority, or if there is no Will, the Personal Representative may need to file a court request asking for permission to sell. In Florida, when the Personal Representative does not have a usable power of sale, title does not pass until the court authorizes or confirms the sale.

Realtor takeaway

Do not rely only on the fact that someone is the Personal Representative. Ask whether the Will gives that person authority to sell. If not, court approval may be needed before closing.

3. Who signs at closing?

If the property is part of the probate estate and the Personal Representative has authority to sell, the Personal Representative usually signs the deed at closing on behalf of the estate.

After closing, the sale proceeds are handled through the probate estate. The Personal Representative must follow the Will, court orders, and probate requirements, including payment of proper estate expenses, creditor claims, and distributions to beneficiaries or heirs.

Realtor takeaway

The Personal Representative may be the signer, but the money does not simply belong to that person. The proceeds must be handled according to the probate process.

4. Exception: Was the property the deceased person’s homestead?

Homestead property is a major exception and should be handled carefully.

If the property was the deceased person’s homestead, the probate attorney may file a Motion to Determine Homestead Status. If the court agrees that the property was protected homestead, the court will enter an order confirming that status.

Once the property is determined to be protected homestead, it is generally no longer controlled by the Personal Representative in the same way as other probate assets. Florida law states that the Personal Representative’s general power over estate property excludes protected homestead.

That means the Personal Representative may lose authority to list or sell the property. Instead, the people who inherited or legally hold rights in the homestead may need to sign the listing agreement, contract, and deed.

These people may include:

1. The beneficiaries named in the Will to receive the property.
2. The deceased person’s surviving spouse.
3. The deceased person’s minor children, usually through a legal representative.
4. Any other person legally entitled to an interest in the homestead.

A listing agreement or contract signed only by the Personal Representative may not be binding if the property is protected homestead and the proper homestead heirs did not sign.

Realtor takeaway

Homestead is the biggest red flag in probate real estate. Before listing or writing a contract, confirm with the probate attorney or title company who must sign.

5. What if the property is in a Trust?

If the property is titled in a Trust, it usually does not go through probate.

In most cases, the Trustee is the person with authority to list and sell the property. The Trustee must then distribute the sale proceeds according to the Trust.

Usually, no probate court order is required for a Trustee to sell trust property. However, there is an important exception: if the property in the Trust was the deceased person’s homestead, the deceased person’s spouse or children may still have legal rights that affect the sale.

In that situation, the deed placing the property into the Trust and the Trust document itself should be reviewed by an attorney before the property is listed or sold.

Realtor takeaway

For trust property, do not assume the Trustee is the only required signer if the property was the deceased person’s homestead. Get legal review before moving forward.

Important Definitions:

Probate:  

The legal process by which the Court considers either a will (or the law of intestacy if there is no will) and Orders to whom certain assets are given. The cost is generally around 6% of the estate (total assets subject to probate) and can take over a year.

Homestead:  

The decedent’s principal and permanent residence.  To determine residence, the statutes require consideration of the following factors:

Although any one factor is not conclusive of the establishment or non establishment of permanent residence, the following are relevant factors that may be considered by the property appraiser in making his or her determination as to the intent of a person claiming a homestead exemption to establish a permanent residence in this state:

(1) A formal declaration of domicile by the applicant recorded in the public records of the county in which the exemption is being sought.

(2) Evidence of the location where the applicant’s dependent children are registered for school.

(3) The place of employment of the applicant.

(4) The previous permanent residency by the applicant in a state other than Florida or in another country and the date non-Florida residency was terminated.

(5) Proof of voter registration in this state with the voter information card address of the applicant, or other official correspondence from the supervisor of elections providing proof of voter registration, matching the address of the physical location where the exemption is being sought.

(6) A valid Florida driver license issued under s. 322.18 or a valid Florida identification card issued under s. 322.051 and evidence of relinquishment of driver licenses from any other states.

(7) Issuance of a Florida license tag on any motor vehicle owned by the applicant.

(8) The address as listed on federal income tax returns filed by the applicant.

(9) The location where the applicant’s bank statements and checking accounts are registered.

(10) Proof of payment for utilities at the property for which permanent residency is  being claimed

Personal Representative:  

‍Also known in some states as “Executor,” the person given legal authority to carryon the duties and responsibilities of the Estate in the probate.

Trust:

 A separate legal entity that is the owner of the legal title to the property.  If the property is owned by the Trust the last deed of record will so indicate: Ex., “John Smith as Grantor to Jane Jones as Trustee of the John Jones Revocable Trust, dated 1/1/2001, as Grantee”

Trustee:  

‍The person who is given legal authority by the Trust documentation to carry on the business of the Trust.

Have a client dealing with probate property? Our team helps Realtors navigate probate sales efficiently while minimizing risk and delays. Schedule a consultation with The Legacy Legal Team today.