Florida Estate for Sale

Probate Lawyers in Lakeland Florida. We Provide experienced Probate Legal Services in Polk County, Central Florida and the entire State of Florida.

Call 863.250.2990 today to schedule a Free Consultation with our skilled Probate attorneys.

‹ All Posts

June 30, 2023

Florida probate law is laden with intricate statutes that guide personal representatives in administering a decedent's estate. One such law, Florida Statute 733.613, specifically deals with the personal representative's right to sell real property. Understanding this law can help demystify the complexities of managing real estate during probate.

Florida Statute 733.613 - Personal Representative’s Right to Sell Real Property

Florida Statute 733.613 governs a personal representative’s right to sell real property in two separate circumstances when there is a will or when the decedent did not leave a will, otherwise known as intestate succession.

When there is a will - stating that except as restricted or otherwise provided by the will, where the power of sale is conferred by will and it is necessary for the purpose of administration that an asset be liquidated, the executor may properly exercise his power without resort to the probate court, but where it is not necessary to make such liquidation, even under the general power, probate court should sanction a sale. In re Smith's Estate, App. 2 Dist., 200 So.2d 547 (1967).

When there is not a will - the court has to approve the sale of the real property by an order in a formal proceeding, accepting a contract, monitoring personal representatives, and making sure they are acting reasonably for the benefit of interested persons to sell property of the estate. This law is designed to protect the estate's assets while ensuring the best interest of all parties involved.

However, the statute and Florida Probate Rule must be strictly followed as an Order permitting a personal representative of the estate to sell the real property was deficient in that the personal representative did not comply with the statutory requirement that property to be sold as well as price in terms of sale be described in petition and trial court did not make any determination that sale was either necessary or in the best interest of the estate.  In re Estate of Corbin, App. 1 Dist., 637 So.2d 51 (1994).

Understanding the Right to Sell

Under the purview of this statute, a personal representative has the right to sell real property to manage the estate effectively. This may be required to pay the decedent's debts, taxes, or the costs of administration, or to properly distribute assets to the beneficiaries. Where the executor with power to sell was without funds to pay taxes on the estate's lands, it was his duty to sell so much of the lands as was necessary to pay taxes due.  Henderson v. Leatherman, 120 Fla. 496, 163 So. 310 (1935).

It's important to note that the right to sell real property does not automatically mean that all property will be sold. The personal representative should act in the best interest of the estate, considering the terms of the will, when applicable, the needs of the creditors and beneficiaries, and the property's value.

Homestead Property vs. Non-Homestead Property

The statute applies differently to homestead and non-homestead property.

Homestead property, under Florida law, is the primary residence of the decedent, and it has certain protections. It cannot be sold to pay off creditors (except in certain cases like mortgages, tax liens, or mechanic's liens), and it is usually passed down to the decedent's spouse or descendants. Florida Law gives broad coverage to the homestead and more courts recognize the broad protection.

Non-homestead property, on the other hand, does not have these protections. It is part of the probate estate and can be sold to satisfy the decedent's debts or to facilitate the distribution of the estate. Also, an executor or administrator becomes for most purposes’ the owner of legal title to goods of his testator and may dispose of them as if they were his own, except that he cannot bequeath them, nor can they be taken on execution for his debt.

His powers with regard to the sale or pledge of assets are much broader than those of the trustee since normally he receives the actual title and is presumed to have the right to transfer it.  At common law and in most jurisdictions today, he has absolute power of disposal over whole personal property, including choices in action.  Carter v. Gilbert, 99 Fla. 1056, 128 So. 250 (1930).

Navigating the Potential Foreclosure Action

The power to sell real property can also come into play when there is a potential foreclosure action against the estate. If the decedent had a mortgage on their property and payments are not being made, the lender may initiate foreclosure proceedings.

In this scenario, the personal representative might decide to sell the property to pay off the mortgage and prevent foreclosure. This can preserve the value of the estate, prevent additional legal costs, and ensure a smoother distribution of assets to the beneficiaries. This is a common problem in most probate proceeding as it relates to selling properties.

Conclusion: Balancing Responsibilities and Interests

The responsibilities of a personal representative are indeed challenging and often involve striking a balance between various interests. Understanding Florida Statute 733.613, along with other related probate laws, is crucial in ensuring the proper management of the decedent's real property.

It is the personal representative's role to manage the decedent's assets efficiently, ensure the payment of debts, and distribute the remaining assets to beneficiaries. While the sale of real property can be a complicated process, understanding the legal guidelines and implications can help to navigate this aspect of estate administration effectively.

Remember, real property transactions during probate, whether homestead or non-homestead, often require careful consideration and legal expertise. It is advisable to consult with an experienced probate attorney to understand the implications and strategies involved in these property matters fully.

In summary, Florida Statute 733.613 is a crucial tool in the arsenal of a personal representative navigating the complexities of the probate process. It offers guidance and options when dealing with real property within the estate, helping to ensure that the decedent's assets are managed effectively and in the best interest of all parties involved.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.