Did Your Personal Representative Sell the House Without Telling the Heirs?

Short answer: when a Florida personal representative can sell the house

A Florida personal representative (often called an executor) can sell estate real estate, but the will decides how much court involvement is needed. If the will gives a specific power to sell real property or a general power to sell any asset of the estate, the personal representative may sell without court authorization or confirmation. Fla. Stat. § 733.613 says the sale doesn’t need a showing of necessity.

No title passes until the court authorizes or confirms the sale. Florida’s court rule requires a verified petition that gives the reasons for the sale, describes the property, and states the price and terms. Fla. Prob. R. 5.370

Notice is a separate question. A power to sell doesn’t replace the duty to tell the heirs. The sections below cover that duty, the homestead limits, and the remedies heirs may have.

Why homestead property has extra limits

Homestead rules can limit what a personal representative does with a parent’s house, even when a will mentions a sale. Florida’s constitution protects the homestead. If the owner is survived by a spouse or a minor child, the homestead is not subject to devise. The one exception allows a devise to the spouse when there is no minor child. Fla. Const. art. X, § 4 and § 732.4015 state these limits.

If the homestead isn’t devised as the law allows, it descends like other intestate property. When a spouse and one or more descendants survive, the spouse takes a life estate, and the descendants hold the remainder. Fla. Stat. § 732.401 In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes, and the election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime; the time may not be extended except as provided in paragraph (c).

A personal representative who finds unoccupied homestead property may take possession only to preserve, insure and protect it. That authority lasts while homestead status is decided. § 733.608 The statute doesn’t require the personal representative to rent the property. Fla. Stat. § 733.608 reads: “(1) All real and personal property of the decedent, except the protected homestead, within this state and the rents, income, issues, and profits from it shall be assets in the hands of the personal representative: (a) For the payment of devises, family allowance, elective share, estate and inheritance taxes, claims, charges, and expenses of the administration and obligations of the decedent’s estate.”

Heirs should ask, in writing, how the house was classified and what legal basis supported the sale.

Do the heirs have to be told about a sale?

Florida law requires the personal representative to serve a notice of administration on the persons entitled to it (Fla. Stat. § 733.212). The personal representative must promptly serve known persons, including the surviving spouse and beneficiaries. The personal representative may also serve heirs or others who claim an interest.

That notice starts a clock. An interested person served with the notice must object to the will’s validity, the venue, or the court’s jurisdiction within 3 months after service. Otherwise those objections are forever barred. The period can be extended only for estoppel based on a misstatement by the personal representative. § 733.212 Write down the date you were served.

Notice is separate from the power to sell. Having the power to sell doesn’t excuse the duty to serve notice of administration.

What a sale without notice can mean for the personal representative

A personal representative who breaches a duty can be held liable to the people harmed. The statute says the fiduciary duty is the same as that of a trustee of an express trust. Under § 733.212, the personal representative must promptly serve a copy of the notice of administration on known persons, including the surviving spouse and beneficiaries. Fla. Stat. § 733.609 In those actions, the court must award taxable costs, including attorney’s fees. The court may direct payment from that party’s interest in the estate, or enter a judgment payable from other property.

Fla. Stat. § 733.609 covers liability to interested persons and the award of costs and attorney’s fees.

Under Fla. Stat. § 733.613(3), when real property is sold or mortgaged under a specific power to sell or mortgage it, or under a court order authorizing or confirming that act, the buyer or lender receives title that is not subject to estate creditors’ claims or beneficiaries’ entitlements; existing mortgages or other liens against the real property, however, are not affected. Under Fla. Stat. § 733.613(1), a bona fide purchaser is not required to examine proceedings before an order of sale in a sale the court authorizes. That protection is subject to the rule in § 733.613(1).

What heirs can request and review after learning of a sale

Residuary beneficiaries and heirs in an intestate estate can ask about all inventoried assets. The personal representative can be asked for a copy of any appraisal. The personal representative must tell each beneficiary about this right.

The personal representative must file a verified inventory with estimated fair market value at the date of death. If an item was missed or misvalued, an amended inventory is required. Under § 733.604(1)(a), a personal representative who has not already filed an inventory must file a verified inventory of the estate’s property, describing each item in reasonable detail and stating its estimated fair market value as of the date of the decedent’s death.

Inventories and accountings filed with the clerk are confidential. Interested persons can still receive them, and a court can order disclosure for good cause. § 733.604

Useful records include the deed, closing statement, listing or purchase agreement, and bank records showing where the proceeds were deposited. Check whether a verified inventory was filed, since under § 733.604 a personal representative must file one unless an inventory was previously filed. Fla. Stat. § 733.604 reads: “(1)(a) Unless an inventory has been previously filed, a personal representative shall file a verified inventory of property of the estate, listing it with reasonable detail and including for each listed item its estimated fair market value at the date of the decedent’s death.”

Next step if a parent’s home has already been sold

If you learned after the fact that a house was sold without notice, start by asking for the sale papers and the legal basis. Finding out this way can bring grief, anger and confusion about deadlines.

Trust Counsel, PL focuses on probate litigation and trust litigation. The firm advises and represents trustees, personal representatives and beneficiaries. Trust Counsel’s attorneys can serve individually as trustee or personal representative.

Leslie V. Marenco is the responsible lawyer for this page. The firm’s only office is in Coral Gables, Florida, and we serve clients in Florida. This matter may be referred to another lawyer or firm.

Common questions