When a person passes away, the assets they leave behind—which together form their estate—may need to undergo probate, a court-supervised process for properly gathering and distributing a deceased’s assets. In many cases, a decedent’s assets will include at least one real property, which the beneficiaries of the estate may decide to list and sell with a real estate professional.
On the surface, a probate sale may seem like a “normal” real estate transaction because there is a seller, a buyer, and funds being exchanged for real property. However, the probate process has many legal requirements and complexities that will challenge even the most experienced Realtor, whose time is better spent focusing on what they know and love to do best – helping buyers and sellers with their real estate needs.
The probate attorneys at Farshchian Law, P.A. have ample experience with this nuanced judicial process and know how to work with Realtors to help improve the chances of a smooth and successful closing.
The Basics of a Probate Sale
Probate is intended to provide an accounting of a deceased person’s assets so they can be properly distributed to their rightful heirs and beneficiaries. It is also used to satisfy outstanding debts or taxes owed by the deceased. The probate process is supervised by a probate court to ensure compliance with the Florida Probate Code, including with respect to selling real property during the probate process.
A probate sale may be initiated for a variety of reasons, such as needing access to the cash from the sale, paying off creditor claims, paying legal fees and other probate costs, or settling disputes amongst the beneficiaries.
If an estate qualifies for the shortened form of probate in Florida, known as a Summary Administration, the sale of the property takes place after the probate is completed. A Summary Administration can take as little as a few weeks to complete. To qualify for Summary Administration in Florida, the probate estate must meet one of the following two criteria:
- The estate is worth less than $75,000, excluding exempt property. Exempt property includes homestead property (i.e., the deceased’s primary residence); OR
- The deceased passed away more than two years ago. This means that the estate does not have any creditor claims to resolve, as the two-year unsecured creditors’ claims period has already ended.
If a probate estate does not qualify for Summary Administration and must undergo a Formal Administration, a probate sale must usually meet the following requirements:
- Approval by the probate court, which must be obtained by a petition signed by the personal representative and their attorney. The petition must include the property’s legal description and address, affirm that it is being sold at a fair market price, and declare the sale is an “arm’s length transaction,” i.e., it is between unrelated parties pursuing their own self-interest. Note that if the deceased’s Last Will and Testament contained a “Power of Sale” clause, court approval may not be required.
- If court approval is required, an appraisal (an estimate of the property’s value) must also be obtained. Some Florida counties will accept a real estate broker’s comparable market analysis (i.e., “comps”) in lieu of an appraisal.
- A copy of the sales contract.
- Proof that all beneficiaries of the estate consent to the sale, including residual beneficiaries (those who will receive whatever is left of the estate after debts are paid and named heirs and beneficiaries receive their portion). This usually takes the form of a signed statement affirming consent to the sale. If you cannot obtain affirmative consent, you must provide proof that you formally notified the beneficiaries without receiving an objection (or set the matter for a hearing before the probate court).
If the probate court is satisfied that all requirements have been met, it will issue an order authorizing the sale of the property during the probate. Nevertheless, the court has the discretion to request other documents or evidence before it approves the sale. At the very least, the probate proceedings must be “current” at the time the probate sale is being proposed, meaning the order appointing the personal representative has already been issued, the deceased’s Last Will & Testament has already been admitted by the court, etc.
Farshchian Law, P.A. Has Experience with Probate Sales
While every real estate transaction has legal implications and requirements, a probate sale adds additional layers of legal complexity. Regardless of which side of the transaction you represent, it is strongly advised to hire an experienced probate attorney who knows how to navigate the particularities of the probate process while protecting your client’s interests.
With ample experience in both probate and real estate law, Farshchian Law has the unique combination of expertise to handle a probate sale. We will work diligently to help the probate sale move along as quickly and efficiently as possible. Let us handle the complexities of probate so you can focus on doing what you do best: getting the deal closed.
To learn more about our probate services, or to schedule a FREE consultation, please call us at (800) 604-1871, or email us using our secure online contact form. We handle probate, real estate, and estate planning matters throughout the State of Florida.