Probate Lawyer or Real Estate Lawyer? Know Which One Florida Estates Need

What’s the difference between a probate lawyer and a real estate lawyer? A probate lawyer guides the court process for settling a deceased person’s estate. A real estate lawyer handles the property deal, such as a sale, a deed or a closing. The two jobs meet when a house is part of the estate. This page explains where each one fits and when a family may need both.

The short answer: two different jobs that sometimes meet

A probate lawyer works on the estate, and a real estate lawyer works on the property. Probate is the court process for settling a person’s estate after death. It covers who manages the assets, who receives them and how debts get paid.

A real estate lawyer focuses on a single transaction. That work includes purchase contracts, title review, deeds and closings. It doesn’t usually involve the estate itself.

The two areas meet at the house. A family may need a real estate lawyer to handle the sale and a probate lawyer to confirm the estate can complete it. For an overview of the probate and trust matters Trust Counsel handles, see the probate litigation page.

What a probate lawyer does in Florida

A probate lawyer advises and represents the person the court puts in charge of the estate. In Florida, that person is the personal representative (often called an executor). Florida law sets the standard. A personal representative is a fiduciary who must observe the standards of care that apply to trustees (Fla. Stat. § 733.602). The duty is to settle and distribute the estate under the will and the probate code as efficiently as possible, in the estate’s best interests.

Typical work includes opening the estate with the court, listing assets and debts, handling creditor claims and filing court papers. Creditors face a deadline. Under § 733.702, if not barred by s. 733.710, no claim or demand against the decedent’s estate that arose before the decedent’s death is binding on the estate, on the personal representative, or on any beneficiary unless it is filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor. Separately, under § 733.710, 2 years after the death of a person, the estate, the personal representative and the beneficiaries are not liable for claims against the decedent, except as that section provides. Under § 733.702, and if not barred by § 733.710, a claim is binding on the estate, the personal representative, or any beneficiary only if it is filed in the probate proceeding on or before the later of 3 months after the first publication of the notice to creditors or, for a creditor required to be served, 30 days after the date of service on that creditor. Section 733.710 separately bars claims 2 years after the death of a person, except as that section provides. The final step is distributing property to the beneficiaries.

Probate litigation covers disputes too. These include will and trust challenges and fights among heirs. Trust Counsel’s attorneys can serve individually as trustee or personal representative, and the firm advises and represents trustees, personal representatives and beneficiaries.

What a real estate lawyer does

A real estate lawyer handles the property deal from contract to closing. The work centers on the transaction and the property record. Typical tasks include reviewing purchase and sale contracts, searching title for liens and defects, preparing or reviewing deeds, coordinating the closing, and handling financing or leases.

The focus differs from probate work. A real estate lawyer asks whether the deal is clean and the title can be transferred. A probate lawyer asks who has the legal right to the property and whether the estate process allows the sale. The table below compares the two by question.

Where the two overlap: selling or transferring an inherited home

Whether a personal representative can sell an estate home on their own turns on what the will says. If the will gives a specific power to sell or mortgage real property, or a general power to sell any asset of the estate, the personal representative may sell, mortgage, or lease the real property without court authorization or confirmation (Fla. Stat. § 733.613). If the will does not give that power, or gives a power so limited that it cannot be conveniently exercised, or the estate is intestate, the personal representative must consider that a sale is in the best interest of the estate and of those interested in it, and title does not pass until the court authorizes or confirms the sale, under § 733.613(1).

Possession follows its own rule. Unless the decedent’s will provides otherwise, every personal representative has a right to take possession or control of the decedent’s property, except the protected homestead and a surviving spouse’s one-half share of community property under the Florida Uniform Disposition of Community Property Rights at Death Act (Fla. Stat. § 733.607). Real property may also be left with, or surrendered to, the person presumptively entitled to it. That happens unless the personal representative needs the property for administration.

A buyer’s real estate lawyer will ask practical questions. Who has the legal authority to sign? Does the will give a power of sale? Has the court entered an order? Is the home a protected homestead? Are there mortgages or liens? A probate lawyer usually answers the estate questions for the estate.

Can an estate be distributed without probate?

Some assets pass outside probate, but a house does not always. How each asset is titled and designated decides which path applies. Florida does not assume survivorship between co-owners. Under § 689.15, a transfer to two or more people creates a tenancy in common. The exception is when the instrument expressly provides for a right of survivorship, or when the property is held as an estate by the entirety, which becomes a tenancy in common upon dissolution of marriage.

A trust’s assets are handled under the trust terms, which is trust administration work.

Florida also has simplified options for smaller estates. Under § 735.201, summary administration may be used when the estate, less property exempt from creditors, does not exceed $150,000, and, in a testate estate, the decedent’s will does not direct administration as required by chapter 733. Summary administration may also be available for any estate, with or without a will, when the decedent has been dead for more than 2 years; in a testate estate, the decedent’s will must also not direct administration as required by chapter 733. Under § 735.301, no administration is required for an estate holding only certain personal property whose nonexempt value does not exceed the preferred funeral expenses and reasonable necessary medical and hospital expenses of the last 60 days of the last illness, and a court may authorize its transfer to those entitled.

Families shouldn’t assume a house can change hands just because a relative died. Confirm the deed, the beneficiary designations and any trust documents first. Whether any shortcut applies depends on the facts of the case.

Estate lawyer vs. probate lawyer: where each fits in the timeline

An estate planning attorney works before a death, and a probate lawyer works after it. People often use “estate lawyer” for both, so it helps to think in order. Estate planning means drafting wills, trusts, powers of attorney and beneficiary plans while the person is alive. Those documents shape what passes and how.

Probate is the court and administration process that starts after death. A will that has not yet been admitted to probate in Florida or in the decedent’s domicile state is ineffective to prove title to the testator’s property. Until admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator (Fla. Stat. § 733.103). Trust administration sits between the two. It applies once a trust becomes active.

The same firm may handle planning, probate and trust work. The work itself is still different. Planning happens before a death. Probate and trust administration happen after it. A real estate lawyer’s role starts later, when the property moves.

What to bring to a first meeting with either lawyer

Bring the documents that show what the estate holds and what has already happened. Helpful items include the will or trust, the death certificate, the deed to any real property, mortgage and loan statements, account statements, and any court papers already filed.

These papers help a lawyer sort out the first questions. They show who owns what, whether a will exists and whether a court case has started. Each item saves time at the first meeting.

In a consultation, the lawyer uses these facts to understand the matter. Ask what you will need to do next, and ask what fees will apply before you commit. The firm offers a free first consultation, confidential, with no obligation to continue.

Talk with Trust Counsel about the property and the estate

If a family member has died and their home is part of the estate, you may be making hard choices while grieving. You may be researching for a parent, a sibling or an aunt. You may be under time pressure and not sure which lawyer to call first.

Leslie V. Marenco of Trust Counsel, PL, in Coral Gables, Florida, can help you sort out the house question, the probate steps and who needs to act first. Call (305) 707-7126 or request a time online at the contact page. The firm’s only office is in Coral Gables, and we serve clients in Florida.

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