While most real estate transactions involve property owned outright, agents often encounter clients dealing with inherited property through probate. Understanding the probate process is vital in providing comprehensive service to your clients.
You can inherit real estate in several ways:
Often, the client inheriting the property intends to sell it quickly. This necessitates a thorough understanding of how real property passes through probate.
To sell inherited property in Florida, a court order is typically required from a Florida probate court. This applies if the inheritance is via a will, trust, or intestacy. Opening a probate for the decedent’s estate is a crucial step. Florida law allows designated heirs of real property and/or the personal representative of the estate to sell real property owned by the estate before probate is completed. The personal representative of the estate has the authority to contact a realtor and list the property for sale. If the personal representative chooses to sell real property owned by the estate, a court may require the personal representative to list and/or sell the property at market value. The estate can then sell the real property and hold the proceeds from the sale in an escrow account with the Court until the Court determines the distribution of sales proceeds among the heirs.
An additional consideration that your clients may have is whether real estate that is subject to probate is exempt from creditor claims if the property qualifies as a homestead. The short answer is yes. Once a probate case opens, heirs of the estate can petition the Court for an order to determine homestead status, granted if they demonstrate the property’s qualification as a homestead under Article X Section 4 of the Florida Constitution. You can find a discussion of homestead qualifications here. An order establishing homestead is important as most title companies will not issue title insurance for the property unless the seller can prove that the property was the legal homestead of the decedent.
For clients who are personal representatives or heirs wishing to sell probate property, it is advisable to consult a probate and real estate attorney. This ensures that the sale complies with legal requirements and safeguards client interests.
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