Probate house sale in Florida: who signs, how long it takes and what it costs

If someone close to you has died and left a house in Tampa, very little has to happen this week. The order matters more than the speed: first find out who has authority, then decide whether to sell, then prepare the house.

What a probate house sale in Florida means

The Florida Bar describes probate as a court-supervised process for identifying and gathering a deceased person's assets, paying the debts and distributing what is left to the beneficiaries. A house goes through probate only when it is a probate asset, and not every house is one.

So the first step is to pull the deed. If the owner is still alive and someone signs under a power of attorney or guardianship, that is a different process, covered in our guide to selling a parent's house in Florida.

Source: The Florida Bar, Probate in Florida.

Who can sell a house in probate in Florida

The seller is the personal representative, Florida's term for an executor or administrator. The judge appoints that person and issues "letters of administration," the paper that proves the representative's authority. Expect a buyer's title company to ask for them.

• With a will: The Florida Bar says the judge appoints the person or institution the will names, as long as they are legally qualified.
• Without a will: the surviving spouse has the first right to serve, then the person chosen by a majority in interest of the heirs. If the heirs cannot agree, the judge decides after a hearing.
• Out-of-state family: under section 733.304, a person not domiciled in Florida can serve only if related to the decedent in ways the statute lists, such as a child, parent, spouse, sibling, aunt, uncle, niece or nephew.

The Clerk's office notes that most probate cases in Florida require an attorney under Florida Probate Rule 5.030, and The Florida Bar adds that this attorney represents the personal representative, not the beneficiaries.

Sources: Fla. Stat. 733.304; The Florida Bar, Probate in Florida; Hillsborough County Clerk of Court.

Selling a house in probate: power of sale and court approval

Section 733.613 sets out two routes, and the will decides which one applies.

Either way, the statute says the buyer takes title free of the claims of the estate's creditors and the entitlements of beneficiaries, though existing mortgages and other liens are not affected. Ask the attorney at the first meeting which route applies, and build any court step into the timeline.

Source: Fla. Stat. 733.613.

Probate and a Florida homestead

If the house was the owner's Florida homestead, it may not be the personal representative's to sell. Section 733.608 puts the decedent's property in the representative's hands except the protected homestead. Two statutes decide who owns it instead:

• Section 732.4015: homestead cannot be left by will if the owner is survived by a spouse or a minor child, except that it may go to the spouse if there is no minor child.
• Section 732.401: if the homestead is not validly left by will and the owner leaves a spouse and descendants, the spouse takes a life estate and the descendants take the remainder. Instead, the spouse may elect to take an undivided one-half interest as a tenant in common. The election must be made within 6 months after the death by recording a notice in the county's official records. Once made, it cannot be undone.

Either outcome can mean several people hold an interest, and each may need to sign. Section 733.608 does let the representative take possession of an unoccupied homestead to preserve, insure and protect it while its status is decided, and the money spent becomes a lien on the property. Do not list a house that may be homestead until the attorney has told you who holds title.

Sources: Fla. Stat. 733.608; Fla. Stat. 732.4015; Fla. Stat. 732.401.

How long it takes to sell a house through probate in Florida

The house can usually be sold while the estate is still open. The estate itself runs on a few fixed clocks:

The Florida Bar says even the simplest estate stays open for at least the three-month claim period, and that about five or six months is reasonable for a simple estate. Selling real estate, a disputed claim or a will contest tend to lengthen it.

Meanwhile insurance, utilities, lawn care and any mortgage payments continue. Ask the attorney who pays them, and keep every receipt. If the house is empty, ask the insurer whether vacancy changes the coverage. Our guide to hurricane and flood insurance when downsizing lists what to ask.

Sources: The Florida Bar, Probate in Florida; Fla. Stat. 733.2121; Fla. Stat. 733.702; Fla. Stat. 733.710.

Summary administration, formal administration and the house

Florida has two kinds of probate administration, plus a narrow clerk process:

• Formal administration is the full process described above.
• Summary administration is shorter. Under section 735.201 it is available when any will does not direct administration under chapter 733 and the estate subject to administration in Florida, less property exempt from creditors' claims, does not exceed $75,000, or when the person has been dead for more than 2 years. The Florida Bar notes that people who receive assets this way may remain liable for claims against the decedent for two years after the death.
• Disposition of personal property without administration is a Clerk process for very small estates of exempt property and personal property. It does not cover a non-homestead house.

Many houses are worth more than $75,000, so a non-homestead house in the owner's name alone usually points to formal administration, unless the death was more than two years ago.

Sources: Fla. Stat. 735.201; The Florida Bar, Probate in Florida; Hillsborough County Clerk of Court.

When the owner lived in another state: ancillary administration

A part-time resident may leave a Tampa condo or house while the main estate is handled in another state. Section 734.102 covers this: when a nonresident dies leaving assets in Florida, a personal representative named in the will for the Florida property, or the representative from the home state, may have ancillary letters issued here if qualified to act in Florida. That means a second case in Florida, with its own filing fee and usually a Florida attorney. Raise it early with the lawyer handling the main estate.

Source: Fla. Stat. 734.102.

What a probate house sale costs in Hillsborough County

The Hillsborough County Clerk of Court lists these fees:

The documentary stamp rate comes from section 201.02. As a hypothetical, a deed for a $300,000 sale would carry $2,100 in stamp tax. Who pays it is a matter for the contract.

The Florida Bar says the personal representative, the attorney and other professionals such as appraisers are entitled to reasonable compensation, set by the will, by agreement, by an amount presumed reasonable under Florida law or by the judge. Ask the attorney for a written fee estimate.

Then add the ordinary costs of selling. Our guide to estimating net proceeds walks through them line by line, and the Costs and Money page covers the wider Hillsborough County picture.

Sources: Hillsborough County Clerk of Court, Fees and Fines; Fla. Stat. 201.02; The Florida Bar, Probate in Florida.

Property taxes on a house in probate

The tax bill keeps arriving while the estate is open. The Hillsborough County Tax Collector says property taxes become payable November 1 and are due in full by March 31, with discounts of 4 percent in November down to 1 percent in February. Taxes become delinquent April 1, when 3 percent interest and advertising costs are added. Not receiving a bill does not excuse the tax, so make sure it reaches the personal representative.

Under section 193.155(3), a homestead property is assessed at just value as of January 1 of the year after a change of ownership, which resets the capped assessment the owner may have had. Exceptions include a transfer to a surviving spouse, a transfer by operation of law to the spouse or minor children under section 732.401 and a transfer to a dependent who lived there permanently. An heir who keeps the house should budget for a higher bill.

Sources: Hillsborough County Tax Collector, discount periods; Fla. Stat. 193.155.

Probate house sale taxes: capital gains and basis

The Florida Bar says the estate will not have tax filing or payment obligations to the state of Florida, apart from intangibles tax owed for years before its repeal on January 1, 2007. Federal returns may still be due, including the decedent's final Form 1040, Form 1041 for the estate's income and, for larger estates, Form 706.

For the sale, the key figure is basis. IRS Publication 551 says the basis of inherited property is generally its fair market value on the date of death, or on the alternate valuation date if the personal representative chooses it. Publication 523 adds that if an estate tax return was filed or required, the value on that return is the basis. Publication 544 says inherited property is treated as held for more than 1 year. So a house sold soon after the death for about its appraised value often shows little gain. One exception: if you or your spouse gave the property to the decedent within 1 year before the death, Publication 551 says your basis is the decedent's adjusted basis instead.

Order a date-of-death appraisal early, since it supports the basis. Our guide to capital gains on a home sale in Florida covers the federal rules in more detail, and downsizing after the death of a spouse covers the surviving spouse rules.

Sources: The Florida Bar, Probate in Florida; IRS Publication 551; IRS Publication 523; IRS Publication 544.

Preparing and listing a house in probate

Once the attorney confirms who can sign, the work turns practical:

• Clearing it. Our guide to estate sale, consignment or donation compares the options. The contents belong to the estate, so keep anything of value secure until the representative decides.
• Repairing or selling as is. Preparing an older Tampa home to sell covers inspections and the repairs buyers ask about.
• Disclosure. A representative who never lived in the house may know little about it. Our notes on Florida seller disclosures explain what a seller is expected to say.

Tell any agent up front that the house is in probate, and ask the title company early for its list, which may include the letters of administration, a death certificate, any court order and loan payoff letters. If the move started while a parent was alive, helping a parent downsize in Tampa covers the household side.

A checklist for a probate house sale in Tampa

• Find the will and the deed. Whoever holds the original will must deposit it with the Clerk within 10 days of learning of the death.
• Meet a Florida probate attorney. Ask which administration applies, whether the house is homestead and whether the will gives a power of sale.
• Secure and insure the house, and order a date-of-death appraisal.
• Keep paying the property tax, insurance and any mortgage, with receipts.
• Wait for letters of administration before signing a listing or a contract.
• Get a court order before closing if the will gives no power of sale.
• Give every heir the same documents and numbers at the same time.

Our step-by-step downsizing guide and the resources page list local places to start for legal help, estate sales and donation.

When the attorney confirms the house can be listed, you can request an introduction to an agent. Introductions go to agents on the operating team at eXp Realty, so this is not a search of the whole market, and the agent, not this site, handles the sale.