Can the Personal Representative Sell the Decedent’s House During Probate in Florida?
Being appointed personal representative of a Florida estate is a serious position and comes with a lot of responsibility. You will have numerous duties to carry out in order to properly administrate someone’s estate in probate. You may be faced with a variety of unexpected scenarios that you are unsure how to handle, including the need to sell real estate during probate.
If you are named as the personal representative in someone’s will, don’t try to handle it on your own. Let a skilled West Palm Beach probate attorney assist you with navigating the nuances of a Florida probate administration.
Selling a Home During Probate When There’s a Will
Florida’s probate law discusses a personal representative’s right to sell off any of the estate’s assets. There are provisions for both personal property and real estate. Real estate can be trickier than selling off personal property.
If the decedent included a “power of sale” clause, then there would be sufficient authority to allow a personal representative to lease or sell the real estate without getting special permission from the court. In the event there was no power of sale clause, then the personal representative would need to seek permission from the court in order to transfer the title.
When an authorized sale goes through, it will transfer the real estate title to the new buyer, free of any claims from estate beneficiaries or creditors, with two exceptions, any existing mortgages and any liens against the real estate.
Why Would a Personal Representative Sell the Home?
The personal representative cannot just sell the decedent’s home because they choose to. Any sale of assets has to be for the benefit of the estate’s beneficiaries and creditors. A personal representative owes what’s known as a fiduciary duty to the estate’s beneficiaries and creditors. This is a position of loyalty, and if the personal representative does something to break their duty, they could be removed from the position and be personally liable. In a situation where the personal representative is also a beneficiary, any sale of real estate must also be in the best interests of the other heirs.
When Should the Personal Representative Seek Court Approval?
There are three main situations where a personal representative should seek court approval before attempting to sell a house during probate. The first is when there is a will but there is no power of sale clause that authorizes a personal representative to sell any real property. The second is when the decedent died without a valid will in place. This is known as intestate succession. The third trigger to seek the court’s approval would be any situation where the personal representative feels the decision would be challenged by an estate’s beneficiary.
Contact a West Palm Beach Probate Attorney
Making the decision to sell real estate during probate can be complicated. There are other factors to consider beyond whether you are allowed to sell it. There are Florida homestead restrictions to consider, as well as tax implications. This is why it’s so important to have a knowledgeable attorney working with you. If you need assistance with a Florida probate, contact the Law Offices of Larry E. Bray, P.A. today to schedule an initial consultation.