When someone who owns property in Florida passes away, their property may have to go through a legal process called probate.
If you’re a family member, a beneficiary, or someone thinking about buying a home from an estate, knowing how probate works can help you avoid delays, confusion, and financial problems. Probate might sound overwhelming, especially when property is involved—but with the right help and information, it’s much easier to handle.
Here’s everything you need to know about Florida probate, including what happens, how long it can take, and what people need to do when dealing with a property that’s part of someone’s estate.
What Is Probate?
Probate is the legal process that takes place after someone passes away owning assets that have to be transferred to their heirs. The probate process also ensures that any valid debts are paid and that the remaining assets are distributed to the rightful heirs or beneficiaries.
In Florida, if someone owned a house or land solely in their name—and they didn’t take specific steps to avoid probate—that property typically has to go through the probate process before it can be legally transferred or sold.
There are two main types of probate proceedings in Florida:
1. Formal Administration
This is the standard form of probate, used for estates valued over $75,000 where the deceased passed away less than two years ago. This type of probate is also utilized when there are complex matters to resolve such as a high number of creditor claims, a wrongful death action, disputes between heirs, or questions about the validity of the Last Will & Testament.
A formal probate administration involves drafting and filing legal documents (including a petition for administration) with the court, appointing a personal representative to manage the estate, notifying creditors, identifying and valuing assets (including real estate), paying valid debts, and eventually distributing the remaining assets. Formal administration often takes several months to over a year, depending on the complexity of the estate and any disputes that arise.
2. Summary Administration
This streamlined version of probate is available for smaller estates worth less than $75,000 or where deceased passed away more than two years ago. The $75,000 threshold does not include the deceased’s primary residence (i.e., homestead property) so the homestead can be of any value and so long as the rest of the deceased’s assets are less than $75,000, the estate can qualify for summary administration.
While it still requires a petition and some legal documentation, the process is quicker and less costly. Summary administration can be a good option when the primary residence of the deceased is the main asset and the estate otherwise qualifies.
When Does Real Estate Go Through Probate?
Real estate in Florida must typically go through probate when:
- The deceased person was the sole owner of the property
- The property was not jointly owned with survivorship rights
- The property was not transferred into a Trust
- No Enhanced Life Estate Deed (i.e., Lady Bird Deed) or similar planning tool was used
If any of the above planning methods were in place, probate may not be required. However, without those protections, the probate court will need to authorize the transfer of the property to the heirs or beneficiaries. Taking steps to avoid probate is ideal, but it does not always happen before an individual passes away.
What Happens to Real Estate During Probate?
Here is a step-by-step look at what generally happens when a Florida property is involved in a probate case:
- Filing a Petition: A family member, beneficiary, or interested party files a petition with the probate court to open the estate.
- Appointing a Personal Representative: The court appoints a personal representative (also called an executor) to manage the estate’s affairs. A personal representative is not appointed for Summary Administration probates.
- Notification of Creditors: Creditors are formally notified and given 90 days to file any claims against the estate. (This step is not always required for Summary Administration probates).
- Inventory and Valuation: The personal representative must inventory all assets, including real estate, and determine their fair market value.
- Paying Debts and Taxes: Any outstanding debts that are required to be paid and necessary taxes are paid from estate funds before distributions can occur.
- Court Approval for Sale (If Necessary): If the real estate needs to be sold and the Will does not clearly authorize the sale, court approval may be needed. (Court approval of the sale is not required for Summary Administration probates).
- Distribution of Assets: Once debts and expenses are handled, the remaining assets, including real estate, are transferred to the rightful heirs.
- Closing the Estate: Final documentation is submitted to the probate court, and the estate is officially closed.
Note that if the deceased owned real estate in more than one state, an ancillary probate process may be required in each additional state.
Selling Real Estate During Probate
Selling a home that is part of a probate estate involves several legal steps. Here’s what buyers and personal representatives should understand:
- Court Oversight: The court may need to approve the terms of the sale, especially if multiple heirs are involved or there’s no clear direction in the Will. (Court approval is not required for Summary Administration probates).
- Authority to Act: Only the court-appointed personal representative has the authority to manage and sell estate property.
- Disclosure Requirements: Florida law requires full disclosure of known material facts that negatively impact the value of the property and are not readily observable to the buyer. Other disclosures are also required by sellers.
- Extended Timelines: Probate sales may take longer than standard real estate transactions due to the legal process involved.
- Title Clearance: Title companies often require probate documents (such as Letters of Administration) to verify that the personal representative has legal authority to transfer ownership.
Because of these complexities, working with a probate attorney and a real estate professional who understands probate sales can help ensure a smoother process.
How to Avoid Probate for Real Estate in Florida
Proper estate planning can help avoid probate entirely. Common strategies include:
- Joint Tenancy with Right of Survivorship: Property owned jointly with survivorship rights passes automatically to the surviving owner without probate.
- Enhanced Life Estate Deeds (Lady Bird Deeds): This special type of deed allows the owner to retain control during their lifetime while naming a beneficiary to receive the property automatically upon their death.
- Revocable Living Trusts: Transferring property into a Living Trust during your lifetime allows for management of the asset if you become incapacitated and ensures a seamless transition to beneficiaries after your death without court involvement.
Each option has legal and tax considerations. Consulting with an estate planning attorney can help you choose the best approach based on your goals and assets.
Do You Need a Probate Attorney?
While Florida law does not require a probate attorney for every probate type, legal guidance is highly recommended, especially when real estate is involved. An experienced Florida probate and real estate attorney will:
- Draft and file the correct documents and avoid costly mistakes
- Manage deadlines and communication with the probate court
- Assist with selling or transferring real estate
- Resolve conflicts between heirs or beneficiaries
- Provide clear guidance throughout the entire probate process
Hiring a qualified attorney ensures that the process is handled properly and efficiently, reducing the emotional and financial stress for everyone involved.
Final Thoughts
Dealing with probate and real estate in Florida can feel overwhelming, but it doesn’t have to be. With the right legal support and a clear understanding of the process, you can navigate probate with confidence. Whether you’re an executor, an heir, or someone looking to purchase probate property, knowing what to expect can make all the difference.
If you’re preparing for a real estate transaction and need assistance with a warranty deed, contact Farshchian Law at 1-855-513-5880 or email us via our Secure Contact Form. We provide real estate, estate planning, probate, and closing/title services throughout the State of Florida.