Did a Personal Representative Sell the House Without Court Approval?

Short answer: the sale’s authority is the first question

If a personal representative (often called an executor) sold house without court approval in Florida, the first question is what authority was used. A personal representative may sell estate real estate without a court order when the will gives a specific or general power of sale, and a sale may also rest on court authorization or confirmation. If the will gives no usable power, Fla. Stat. § 733.613 requires court authorization or confirmation before title passes.

Except as otherwise provided by the will or court order, and subject to the priorities stated in s. 733.805, a personal representative, acting reasonably for the benefit of the interested persons, may properly retain assets owned by the decedent, pending distribution or liquidation, without court order (Fla. Stat. § 733.612). Under Fla. Stat. § 733.612(5), a personal representative’s power to dispose of estate assets without court order excludes real property in Florida or another state.

Leslie V. Marenco is the responsible lawyer for this page. Trust Counsel, PL has its only office in Coral Gables, Florida.

What the will and the Florida Probate Code allow

The wording of the will decides how much sale power the personal representative holds. A will can grant a specific power to sell or mortgage real property, or a general power to sell any estate asset. When it does, the personal representative may sell without court authorization, as § 733.613 explains in its second subsection.

Many disputes start with a will that says little about real estate. In that case, the code’s default path applies. The personal representative needs court authorization or confirmation before title passes. A power that is too limited to use conveniently has the same effect.

The Florida Probate Code supplies the rules when the will is silent. Under § 731.201, a “beneficiary” is an heir in an intestate estate or a devisee in a testate estate; where a devise is to an existing trust or trustee, or to a trust or trustee described by will, the trustee is a beneficiary of the estate. Heirs often fall within that definition, which matters when you ask who may challenge a sale.

If the house sat in a trust rather than an estate, the questions change. A trust litigation attorney can address property held in a trust.

When court approval, heir consent, or a court order matters

A personal representative who sold house without court approval usually raises this problem when the will gave no usable power. In that case, § 733.613 says no title passes until the court authorizes or confirms the sale.

Court approval also matters when the buyer is close to the personal representative. Under § 733.610, a sale to the personal representative, the representative’s spouse, agent, or attorney, or an entity where any of them holds a substantial interest, is voidable by any interested person except one who has consented after fair disclosure. A person who has consented after fair disclosure cannot void the sale; otherwise it stands only if the will or a decedent’s contract expressly authorized it, or the court approved it after notice to interested persons.

When court approval is sought, the personal representative files a verified petition. It states the reasons for the sale, describes the property, and gives the price and terms. An order for a private sale must also specify the price and terms, under Fla. Prob. R. 5.370.

A good-faith buyer has some protection. That protection is stated as subject to § 733.613(1), so a buyer’s good faith does not settle the question alone.

When you review the record, compare the closing date with any order in the probate file. A closing that came before the order, or with no order at all, is the first gap to examine.

How an heir obtains the probate file

An heir can start with the probate court file, which the clerk of court keeps. Look for the petition, the letters issued to the personal representative, any inventory, any accounting, and any order authorizing or confirming a sale.

Inventories and accountings are confidential under § 733.604, so they may not appear in a public search. The clerk must disclose them for inspection to the personal representative, that representative’s attorney, an interested person, or by court order for good cause.

Whether you are an interested person depends on the facts. Section 731.201 defines the term as any person who may reasonably be expected to be affected by the outcome of the particular proceeding, but it does not include a beneficiary who has received complete distribution.

You can also make a written request. Under § 733.604(3), a residuary beneficiary or an heir in an intestate estate may ask for a written explanation of how an inventory value was set, or a copy of any appraisal, regarding all inventoried assets; any other beneficiary may ask regarding all assets distributed or proposed to be distributed to that beneficiary. The personal representative must tell each beneficiary about this right. A written request also leaves a dated record of what you asked for.

What the sale record should show

A complete sale record shows the authority used, the price and terms, and where the money went. Gather the recorded deed, the purchase contract, the closing statement, and any payoff or title documents.

The closing statement should show where the proceeds went. Use it to trace whether the money reached the estate account. Match the will’s sale provision, any court order, and the closing date against one another.

Compare the sale price with the inventory. Under § 733.604, the inventory lists each item’s estimated fair market value at the date of death. 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.” A gap is a question to ask, not proof of wrongdoing.

Missing or inconsistent records can be a reason to ask for an accounting. Accountings filed with the clerk are confidential too, so the same disclosure path applies.

When an objection or surcharge claim is considered

An objection or surcharge claim is considered when a sale appears to go beyond the personal representative’s authority or breaches a duty owed to the estate. Under § 733.609, the personal representative’s fiduciary duty is the same as a trustee’s, and the representative is liable to interested persons for loss from a breach.

A surcharge claim asks the court to hold the representative responsible for a loss. That requires proof of both the loss and the breach. Personal liability is limited. Under § 733.619, a personal representative is individually liable for obligations arising from ownership or control of the estate, or for torts committed in the course of administration of the estate, only if personally at fault.

Under § 733.609, when awarding taxable costs, including attorney’s fees, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.

Probate can move quickly, so review the sale facts as soon as you learn of them. Whether any objection or claim succeeds turns on the documents and the court’s ruling. No result can be promised in advance.

Can the personal representative be a lawyer, and what that means for a sale

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries. The firm does not serve as a fiduciary in any estate or trust.

That distinction shapes how a sale is reviewed. The question is what authority the actual personal representative used, and what the file documents show. The identity of a lawyer who advises the estate does not answer that question.

If property turns up that was missing from the estate or trust records, a probate litigation attorney can review the accounting and inventory. A question about whether a lawyer can hold the fiduciary role itself is a separate issue, covered on the firm’s trust litigation pages.

Reviewing a questioned sale with a Florida trust and estate lawyer

A questioned sale is reviewed in four steps. Identify the authority, get the probate file, review the sale record, and then weigh any objection or surcharge claim.

Picture an heir who learns that the family house closed without advance notice. The heir wants to know whether the personal representative had the power to sell it, and whether a court order exists.

Frequently asked questions