Florida Probate Real Estate 2026: Selling Inherited Property & Buying Estate Sales

What heirs, buyers, and sellers need to know about FL probate — from homestead descent rules and the personal representative's authority to stepped-up basis, avoiding probate, and buying an estate sale safely.

Florida Probate Overview

Probate is the court-supervised legal process of transferring a deceased person's assets to their heirs or beneficiaries, paying outstanding debts, and closing out the estate. In Florida, probate is governed by the Florida Probate Code (F.S. Chapters 731–735), administered through the circuit courts in the county where the decedent was domiciled at the time of death.

Real property located in Florida must go through FL probate unless it is structured to avoid probate in advance. Unlike many other states, Florida does not have a Transfer on Death (TOD) deed — a simple deed in a deceased person's name with no co-owner or trust attached will not transfer automatically. It requires a court proceeding.

Real property avoids FL probate only if it is held in one of these ways:

• Joint tenancy with right of survivorship (JTWROS) — surviving co-owner takes full title automatically at death
• Revocable living trust — property held by the trust passes through the trustee without court involvement
• Enhanced life estate deed ("Lady Bird deed") — transfers automatically to named beneficiary at death (F.S. §689.075)
• Tenancy by the entirety — available only to married couples; surviving spouse takes full ownership

Types of Florida Probate

Florida offers three types of probate proceedings, each with different requirements and timelines. Choosing the right one — or determining which applies — requires reviewing the estate's assets and circumstances.

Florida Homestead Descent Rules — The Hidden Trap

Homestead property in Florida does not descend like other assets. This is one of the most important — and most misunderstood — aspects of FL probate real estate. The rules come from Article X §4 of the Florida Constitution and F.S. §732.401, and they override a decedent's will.

If Decedent Leaves a Surviving Spouse and Adult Children Only

The surviving spouse automatically receives a life estate in the homestead property. The adult children receive the remainder interest — meaning they inherit the property outright when the spouse dies. However, under F.S. §732.401(2), all parties may elect within six months to instead hold the property as tenants in common — with the spouse owning an undivided 50% interest and the children collectively owning the other 50%.

If Decedent Leaves Minor Children (No Surviving Spouse)

Homestead property descends to the minor children. Because minors cannot legally convey property, selling the homestead requires court approval and typically the appointment of a guardian of the property. This adds significant time and complexity to any sale.

Homestead Cannot Be Devised Away

A decedent's will cannot override these homestead descent rules. Even if the will explicitly says "I leave my house to my sister," if there is a surviving spouse or minor children, they retain their constitutional rights in the homestead. The devise to the sister is void as to the homestead. Title companies will require this issue to be resolved before insuring the transaction.

If No Surviving Spouse or Minor Children

Homestead may be devised freely in the will — or it passes by intestate succession if there is no will. In this scenario, the homestead is treated more like ordinary property and can be sold through the normal probate process with the personal representative's authority.

The Personal Representative's Authority to Sell

In formal administration, the court appoints a personal representative (PR) — formerly called an "executor" under prior FL law — to administer the estate. The PR has a fiduciary duty to the beneficiaries and creditors of the estate. Under F.S. §733.613, the PR has the power to sell real property to pay debts, administration expenses, or to facilitate distribution of the estate.

• With beneficiary consent: If all beneficiaries agree to the sale, the PR can proceed without a specific court order authorizing the sale.
• Without full beneficiary consent: The PR may need to petition the court for an order authorizing the sale. This adds time but is not unusual.
• Letters of Administration: As a buyer or title company, you must see the Letters of Administration issued by the probate court. This document confirms the PR's identity and authority to act on behalf of the estate. Without current, valid Letters of Administration, do not close.
• Title company role: Your title company will independently verify the PR's authority, search for creditor claims against the estate, and confirm that the probate proceeding is properly opened. This is one reason title insurance is non-negotiable on a probate purchase.

Selling Inherited Florida Property: Step by Step

Step 1 — Open Probate and Obtain Letters of Administration

If the estate requires formal administration, a FL probate attorney petitions the circuit court in the county of the decedent's domicile to open the estate and appoint a personal representative. The court issues Letters of Administration once the PR is sworn in. This document is what gives the PR legal authority to sign a contract and deed.

Step 2 — Estate Appraisal

The property is appraised for estate purposes. The appraised value establishes fair market value at the date of death — which also becomes the stepped-up tax basis for capital gains purposes (see below). The PR has a fiduciary duty to sell at or near fair market value and cannot simply sell below market to a favored buyer.

Step 3 — Resolve Homestead and Heir Consent Issues

Before listing, determine whether the property is homestead and who holds an interest. All parties with an interest must consent, or the PR must obtain court authorization. Your probate attorney and title company will work together to identify all required signatures.

Step 4 — List and Sell

Probate properties are typically sold AS IS. The estate is not required to make repairs, and the PR typically does not have personal knowledge of all property conditions. Buyers should always conduct a full inspection. The PR must negotiate in good faith and at fair market value per their fiduciary duty.

Step 5 — Proceeds Distributed

After closing, sale proceeds are used to pay: (1) outstanding property-related costs (taxes, HOA arrears, code liens); (2) estate administration expenses and attorney fees; (3) creditor claims against the estate; (4) remaining balance distributed to beneficiaries per the will or FL intestate succession law.

Stepped-Up Basis — The Major Tax Advantage of Inherited Property

One of the most valuable — and underappreciated — aspects of inheriting real property is the federal stepped-up basis rule under IRC §1014. When a beneficiary inherits property, their cost basis for capital gains purposes is reset ("stepped up") to the property's fair market value as of the decedent's date of death.

This rule is one of the strongest arguments for not adding an adult child's name to a deed simply to avoid probate — because a gift during life does not get a stepped-up basis. The child inherits the original cost basis instead, potentially triggering a large capital gain on sale. Always consult a tax professional before restructuring ownership to avoid probate.

Florida has no state estate tax (repealed in 2004). The federal estate tax exemption in 2026 is approximately $13.61 million per individual — scheduled to potentially sunset at the end of 2025 under the Tax Cuts and Jobs Act (TCJA). Verify current federal exemption amounts with a tax professional, as this figure may change. For the vast majority of FL families, federal estate tax is not a concern.

Buying a Probate Property in Florida — What Buyers Need to Know

Probate properties can offer real value — especially when an estate is motivated to sell quickly or when the property has been held for decades and priced at estate-valuation rather than market-peak expectations. But probate purchases come with unique risks that require preparation.

Title Insurance Is Essential

Probate titles can carry "clouds" — title defects that must be resolved before a clean sale. Common issues include: unknown or unlocated heirs who may assert an interest, unpaid creditor claims against the estate, homestead descent complications, prior liens or judgments, and errors in prior estate proceedings. A title insurance policy with a full probate endorsement protects you if any of these surface after closing. Do not waive title insurance on a probate purchase under any circumstances.

Inspections Are Still Your Right

Even though probate properties are typically sold AS IS, you still have the right to conduct a home inspection, and you should exercise it. The inspection findings inform your decision to proceed and any price renegotiation (though the estate may be less flexible than a traditional seller). Check for deferred maintenance, system condition, roof age, and anything that may affect financing if you are using a mortgage.

Timeline Will Be Longer

Standard FL real estate closings take 30 to 45 days. Probate purchases may take 60, 90, or even 120+ days — depending on where the estate is in the probate process when you go under contract, whether all heirs are cooperative, and whether court authorization for the sale is needed. Build this into your plans. If you have a lease expiring, coordinate accordingly.

The Seller's Attorney Is Not Your Friend

The probate attorney represents the estate and its beneficiaries — not you as the buyer. They will review the purchase contract carefully on the estate's behalf. Have your own FL real estate attorney review the contract before you sign, particularly the AS IS clause, any disclaimers of liability, and the closing timeline provisions.

Florida Intestate Succession — When There Is No Will

If the decedent died without a will (intestate), Florida real property passes under the intestate succession statutes (F.S. §§732.102–732.103). The rules are not simple:

• Surviving spouse only (no descendants): Spouse inherits everything.
• Descendants but no surviving spouse: Descendants inherit everything in equal shares per stirpes.
• Surviving spouse and descendants all from that marriage: Spouse inherits everything.
• Surviving spouse and descendants from prior relationship: Spouse gets 50%, descendants collectively get 50% — a scenario that frequently creates conflict and delays sales.
• No surviving spouse or descendants: Parents, then siblings, then more remote relatives in order of kinship.
• No heirs found (escheat): Property passes to the State of Florida after a diligent search (F.S. §732.107). Extremely rare but legally possible.

Avoiding Florida Probate for Real Estate

With proper planning, real property can almost always be structured to avoid probate entirely. The right strategy depends on your family situation, estate size, and goals — a FL estate planning attorney can advise on which approach fits. The main tools are:

1. Revocable Living Trust

The most common and flexible probate-avoidance tool. You transfer title to your real property into a revocable trust during your lifetime. You remain the trustee and retain full control. At death, the successor trustee distributes the property per the trust terms — no court proceeding, no public record, no creditor notification period required. The property is not in your "probate estate," so it passes directly. A trust also avoids the homestead descent complications if structured correctly with a FL attorney.

2. Joint Tenancy with Right of Survivorship (JTWROS)

Adding a co-owner to the deed with an explicit JTWROS designation means the surviving owner takes full title automatically at death — no probate required. Simple and inexpensive but has significant risks: you lose the ability to sell or mortgage without the co-owner's consent; the co-owner's creditors may attach their interest; and if the co-owner dies first, you are back to the same problem. Best suited for spouses, with an attorney's guidance.

3. Enhanced Life Estate Deed ("Lady Bird Deed")

Permitted under F.S. §689.075, the enhanced life estate deed is Florida's practical alternative to a Transfer on Death deed. The grantor conveys the property to a beneficiary while retaining a life estate — with the critical enhancement that the grantor retains the right to sell, mortgage, or modify the deed without the beneficiary's consent during their lifetime. At death, the property transfers automatically to the beneficiary without probate. This preserves Medicaid planning options and does not affect homestead rights. It should be drafted by a FL attorney.

4. Tenancy by the Entirety (Married Couples Only)

When a deed is titled in the names of husband and wife as tenants by the entirety, the surviving spouse takes full ownership automatically at death — with no probate and with additional creditor protection advantages that JTWROS does not offer. This is the default for married couples in FL when a deed does not specify otherwise, but should be confirmed with an attorney if unclear on your deed.

Ancillary Probate — Non-FL Residents Who Own FL Property

If a person who was domiciled outside Florida dies while owning real property in Florida, their estate must file an ancillary probate proceeding in the FL county where the real property is located — even if the primary estate is fully probated in their home state. Florida will not transfer FL real property based on an out-of-state court order alone.

This catches many families off guard. A New York resident with a Fort Lauderdale condo, a Michigan retiree with a Sarasota lot, or a New Jersey-domiciled snowbird with a Palm Beach co-op — all require FL ancillary probate in addition to their home-state proceedings. The ancillary proceeding requires hiring a FL probate attorney and filing in the FL circuit court. Timeline is similar to a regular FL probate proceeding.

Practical Checklist: Buying a Probate Property in Florida

• ☐ Hire a FL real estate attorney — not optional on a probate transaction
• ☐ Confirm the probate proceeding is open and in what county
• ☐ Verify the personal representative has current Letters of Administration
• ☐ Confirm PR has authority to sell (beneficiary consent or court order)
• ☐ Ask whether the property is homestead — and who holds what interest
• ☐ Order a home inspection — even on an AS IS probate sale
• ☐ Order title insurance with a full probate endorsement
• ☐ Request a tax certificate search for unpaid property taxes
• ☐ Request an HOA estoppel letter if applicable
• ☐ Order a municipal lien search for code violations and open permits
• ☐ Build a 60–90 day closing timeline into your contract
• ☐ Have your own attorney review the purchase contract before signing
• ☐ Confirm the creditor claim period has expired or all claims are resolved

Practical Checklist: Selling Inherited FL Property as Personal Representative

• ☐ Retain a FL probate attorney to open the estate and qualify you as PR
• ☐ Obtain Letters of Administration from the circuit court
• ☐ Determine whether homestead rules apply and who holds interests
• ☐ Obtain an independent appraisal for the estate (fiduciary duty requires market-value sale)
• ☐ Confirm all heirs have consented or obtain court authorization to sell
• ☐ Engage a licensed FL real estate agent experienced with estate sales
• ☐ List AS IS; disclose all known material defects per FL Statute §689.261
• ☐ Ensure all closing costs, liens, and taxes are paid at or before closing
• ☐ Distribute remaining proceeds per will or intestate succession order
• ☐ File final estate accounting with the probate court to close the estate