When a Florida Personal Representative Can Sell Estate Real Property

"Executor," "Administrator," or "Personal Representative"?

If you searched for what an "executor" or "administrator" can do with estate property, you are in the right place. Florida uses a single term for the fiduciary who administers an estate in probate: the personal representative. It does not matter whether the person was named in a will or appointed by the court because the decedent died without one, in Florida, the title and the governing rules are the same. The Law Offices of Albert Goodwin, PA represents personal representatives, beneficiaries, and heirs throughout Florida in disputes over the sale of estate real property.

If the Will Grants a Power of Sale, No Court Order Is Needed

The starting point is the will itself. Under F.S. 733.613 and F.S. 733.612(5), where the will grants the personal representative a power of sale, the personal representative may sell estate real property without first obtaining a court order. Many professionally drafted Florida wills include this power precisely so the estate can move quickly, listing the property, accepting an offer, and closing without a separate court proceeding for each step.

A power of sale is not a blank check. Even when no court order is required, the personal representative remains a fiduciary. A sale at a below-market price, on unusual terms, or without adequate marketing can support a claim for breach of fiduciary duty, and the personal representative can be surcharged (ordered to personally repay the estate) for losses the sale caused. Obtaining an appraisal and documenting the marketing effort protects everyone, including the personal representative.

Without a Power of Sale, Court Authorization Comes First

If the will does not grant a power of sale (or there is no will at all and the estate passes by intestate succession) the rule under F.S. 733.613 is different: court authorization is required before title passes to the purchaser. The personal representative petitions the probate court for authority to sell, and interested persons, including beneficiaries and creditors, are entitled to notice and may object. The court weighs whether the sale serves the estate, for example, whether it is needed to pay debts, taxes, or expenses, and whether the price and terms are fair.

The sequence matters. A personal representative without a power of sale who signs a deed before obtaining the court's authorization has a title problem, not just a paperwork problem, because title does not pass to the purchaser without that authorization. Florida title insurers know this, which is why they typically require certified letters of administration, the will if there is one, and any court order authorizing the sale before they will insure the transaction.

Sales to the Personal Representative or Related Parties Are Voidable

Some of the most contested estate sales involve self-dealing. Under F.S. 733.610, a sale or encumbrance by the personal representative to himself or herself, a spouse, an agent, or an entity in which the personal representative has a conflicting interest is voidable by any interested person. There are only two exceptions: the will authorized the transaction, or the court approved it.

This rule has teeth on both sides:

• For beneficiaries: if the personal representative sold estate real property to themselves, a spouse, or a related entity without a will provision or court approval covering the transaction, you do not have to prove the price was unfair. The statute makes the transaction voidable at your election.
• For personal representatives: if you or a family member want to buy estate property, get court approval first, even if you intend to pay full value. Without it, the sale can be unwound later, potentially after you have invested in the property.

Homestead Property: Often Not the Personal Representative's to Sell

Florida homestead protection changes the analysis entirely. Under F.S. 732.401, the decedent's homestead descends outside the ordinary probate estate to the surviving spouse and descendants. Because the homestead passes directly to them, it is generally not an estate asset the personal representative can list and sell like other real property, even if the will contains a broad power of sale.

Where there is a surviving spouse and descendants, the spouse may hold a life estate in the homestead or an undivided interest as a tenant in common, with the descendants holding the balance. Selling the property in that situation typically requires the participation of the people who actually own it (the spouse and descendants) not a probate sale by the personal representative. Before any homestead is put on the market, the estate's attorney should confirm who holds title under F.S. 732.401 and whether the property was homestead at death at all.

When a Completed Sale Can Be Undone

Florida law gives beneficiaries substantial remedies, and in some situations the sale itself can be set aside:

• Conflict-of-interest sales. Under F.S. 733.610, a sale to the personal representative, a spouse, an agent, or a conflicted entity is voidable by any interested person unless the will authorized it or the court approved it.
• Sales without required authorization. Under F.S. 733.613, if the will granted no power of sale, title does not pass to the purchaser without court authorization, so a deed signed without it does not accomplish what the personal representative intended.
• Homestead conveyed as if it were an estate asset. Because F.S. 732.401 vests the homestead in the surviving spouse and descendants outside the ordinary estate, a personal representative's deed to property the estate never owned is open to challenge.

Where the sale cannot practically be unwound (for example, the buyer was a genuine third party) the remedy shifts to the personal representative personally. A court can surcharge the personal representative for the difference between the sale price and fair value, and a beneficiary can petition for removal of the personal representative when an improper sale reflects broader mismanagement.

Compensation and the Incentive to Sell

Beneficiaries sometimes suspect a sale was driven by fees rather than the estate's needs. Under F.S. 733.617, the personal representative earns a commission based on the value of the compensable estate, plus reasonable compensation for extraordinary services, and the sale of real property can qualify as an extraordinary service. That structure is lawful, but it is a reason to scrutinize a sale that was not necessary to pay debts or expenses, especially where a beneficiary was willing to take the property in kind. If you believe a sale was made to generate fees rather than to serve the estate, the sale terms, the estate's cash needs, and the compensation claimed under F.S. 733.617 should all be examined together.

Talk to a Florida Probate Attorney About an Estate Property Sale

If you are a personal representative who needs to know whether a court order is required before closing, or a beneficiary who believes estate real property was sold to an insider or without authority, the answer usually turns on a handful of specific statutes, F.S. 733.613, 733.612(5), 733.610, and 732.401, applied to the exact language of the will and the facts of the sale. At the Law Offices of Albert Goodwin, PA, we advise personal representatives before they sell and represent beneficiaries seeking to void or unwind improper sales. Contact us to discuss your situation.