Concerned a Personal Representative Is About to Sell the Home?

Can you stop a personal representative from selling the family home? Sometimes. Florida law lets a personal representative sell estate real estate in more than one way, and the will’s wording decides which rules apply. This page walks through the steps in the order you’ll need them: check the probate file, confirm your notice rights, object, ask for removal if needed, and act before closing.

A personal representative (often called an executor) is the person who manages estate property while probate is open. This page is the responsibility of Leslie V. Marenco, a lawyer at Trust Counsel, PL in Coral Gables, Florida.

Why a personal representative can sell the home before the estate closes

Under Fla. Stat. § 733.613, a personal representative may sell, mortgage, or lease estate real property without court authorization or confirmation when the decedent’s will confers a specific power to sell or mortgage real property or a general power to sell any asset of the estate. Under Fla. Stat. § 733.613, a will that gives a specific power to sell real property lets the personal representative sell without court authorization or confirmation. The sale doesn’t need to be justified by necessity.

The second way applies to an intestate estate, or when the will has no power of sale, or the power is too limited to use conveniently, and the personal representative considers that a sale is in the best interest of the estate and of those interested in it. The personal representative may then sell at a public or private sale. But no title passes until the court authorizes or confirms the sale.

So your first question is whether the will gives a power of sale. Read the will and any codicils before you assume the sale is lawful or unlawful. Each path gives you different options, so the difference matters.

Check the probate file and confirm what has been filed

Start with the probate court file, because a petition to sell or a court order would be filed in that case. The clerk of court keeps the file in the county where the estate is open. Ask the clerk for the case docket. Look for a petition for administration, an inventory, any petition to sell real property, and any order that mentions the house.

Court papers aren’t the only signal. A listing agreement, a purchase contract, a title commitment, or a closing notice can show that a sale is moving forward. Ask for copies of any of these in writing.

Keep a dated record. Write down what you received, when you received it, and who sent it. Timing matters at every later step, and a clear record helps an attorney act quickly.

A common mistake is waiting for the closing notice. By the time that notice arrives, the contract may already be signed and the closing date may be close. Early review gives you more room to act.

Notice rights: what heirs and beneficiaries are entitled to know

Notice rules decide whether you learn about a court filing in time to respond. Under Fla. Stat. § 731.301, notice of a petition or other proceeding must go to the interested person or that person’s attorney, as the code or the Florida Probate Rules provide.

The same statute says persons who get proper notice are bound by all orders entered in that proceeding. That is why a missed notice matters so much. Check your mail and email for court papers as soon as probate opens.

Notice of administration is a separate step. Under Fla. Stat. § 733.212, the personal representative must promptly serve a notice of administration on persons known to the personal representative, including the surviving spouse.

If you weren’t served, or the notice looks wrong, raise that promptly with the court. Have an attorney review any defect in notice early.

Put your request in writing as well. Ask the personal representative for copies of any pending sale papers, and note whether and when they respond. That record can matter later.

Objecting to the sale and asking the court to stop it

You can object in the probate case and ask the court to act before closing. Start with the deadlines, because some objections have a short window.

Under Fla. Stat. § 733.212, an objection to the will’s validity, the venue, or the court’s jurisdiction must be filed within 3 months after service of the notice of administration. Those objections are forever barred after that window. Unless sooner barred by subsection (3) of Fla. Stat. § 733.212, all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration.

A sale objection is a different kind of filing, so its timing depends on the facts and the stage of the estate. Don’t wait to act once you learn of a sale.

Several grounds may support an objection. Under Fla. Stat. § 733.613, a sale without a power of sale needs court authorization or confirmation before title passes. A sale that skipped that step passes no title, since no title passes until the court authorizes or confirms the sale.

A sale to the personal representative, a spouse, an agent, an attorney, or a business they hold a substantial interest in raises another issue. Under Fla. Stat. § 733.610, a sale to the personal representative, or to the personal representative’s spouse, agent, or attorney, or to an entity in which one of them has a substantial beneficial or ownership interest, is voidable by any interested person except one who consented after fair disclosure, unless the will or a contract the decedent entered into expressly authorized the transaction, or the court approved it after notice to interested persons. The exceptions are a will or contract that expressly authorized it, or court approval after notice.

The price and terms also matter. Under Florida Probate Rule 5.370, when authorization or confirmation of the sale of real property is required, the personal representative must file a verified petition stating the reasons for the sale, a description of the property, and the price and terms of the sale. A private sale order must specify the price and terms.

Emergency relief is a separate tool. A temporary injunction asks the court to pause a closing while the case moves forward. The court decides whether to grant it, and no outcome can be promised. Late filings can be treated differently from timely ones, so file early.

Removing a personal representative who sells without authority

An interested person can ask the court to remove a personal representative for causes listed in Florida law. Under Fla. Stat. § 733.506, removal proceedings can be started by the court or on the petition of an interested person.

The causes appear in Fla. Stat. § 733.504. They include failure to comply with a court order, failure to account for the sale of property or produce estate assets when required, wasting or maladministration of the estate, and holding conflicting or adverse interests that may interfere with administration.

Removal does not end liability.

Removal and a sale objection are separate requests. If the facts support both, raise both in the probate case.

When a personal representative is removed, the court must act to keep the estate in order. Under Fla. Stat. § 733.5061, the court must appoint a successor personal representative or a curator to serve until a successor is appointed.

What can be done if the home has already sold

After a closing, the focus shifts to claims against the personal representative and to the buyer’s rights. Start by understanding the duty the personal representative owes.

A personal representative’s fiduciary duty is the same as a trustee’s duty under an express trust. Under Fla. Stat. § 733.609, the personal representative is liable to interested persons for damage or loss from breach of that duty. The statute also says the court shall award taxable costs, including attorney’s fees, in actions for breach of fiduciary duty or challenging the exercise of a personal representative’s powers.

A buyer who acted in good faith may have protection. Under Fla. Stat. § 733.611, a person who in good faith deals for value with a personal representative is protected as if the personal representative acted properly. That buyer does not have to inquire into the personal representative’s authority, except as § 733.613(1) provides.

Title rules matter too. Fla. Stat. § 733.613 provides that when real property is sold or mortgaged under a specific power to sell or mortgage it, or under a court order authorizing or confirming the sale or mortgage, the purchaser or lender takes title free of claims of the estate’s creditors and entitlements of estate beneficiaries, though existing mortgages or other liens against the real property are not affected. Existing mortgages and liens are not affected.

That is why a closed sale is harder to undo than a pending one. Keep the probate file, the closing statement, the listing history, and all messages before you pursue any claim.

Why timing controls which options remain

Your options narrow as a sale moves from notice to contract to closing, so each stage calls for a fast response. The sequence runs like this: notice first, then objections and any emergency request before closing, then removal while the case is open, and claims after a sale closes.

Each stage has its own deadlines. The 3-month objection window in Fla. Stat. § 733.212 applies to any objection that challenges the validity of the will, the venue, or the jurisdiction of the court, and runs from service of the notice, not from the closing date. Write down the closing date, any hearing date, and every deadline in the probate case as soon as you learn them. Delay can narrow what remains possible.

Quick answers

Talk with a Coral Gables trusts and estates attorney before the closing date

If a personal representative has listed or contracted to sell the family home and closing is near, talk with a lawyer before that date arrives. You may not have received the sale papers, or you may have a closing date with no explanation of the court steps. That is when the options on this page matter most.

Trust Counsel, PL’s only office is in Coral Gables, Florida. We serve clients in Florida. We serve clients in Fort Lauderdale. The firm advises and represents trustees, personal representatives and beneficiaries. Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm’s probate litigation and trust litigation work covers disputes between heirs and fiduciaries.

Our first consultation is free, confidential, and carries no obligation to continue. To review the probate file and sale documents with a Coral Gables attorney, call (305) 707-7126 or schedule your consultation.