In Florida, one of the many duties of an executor includes paying the decedent's creditors with estate assets. Sometimes, an executor may sell real estate without the heirs' or beneficiaries' permission. However, the circumstances under which the executor may sell real estate without approval of a probate court are limited.
During the probate process, the executor is responsible for making sure all the decedent's debts are paid. Once an executor is granted authority to administer the estate, he is required to notify the decedent's creditors that the estate is being probated. The decedent's creditors then submit claims to the probate court; the executor must pay the claims after the court approves them. Under certain circumstances, an executor may sell real property, such as a house, if other assets are insufficient to pay creditors' claims.
In Florida, an executor is required to obtain a court order approving the sale of real estate if the decedent neglected to make a last will and testament; failure to make a will is called dying "intestate." Moreover, the probate court may require the executor to notify all heirs of the sale of real estate.
If the decedent did make a will -- also known as dying "testate" -- an executor may not sell real estate without the court's permission unless the will expressly grants him the authority to do so. If the will does not grant this authority, the executor may be required to seek the court's approval -- and the beneficiaries' approval -- before he may sell any real estate, including real estate that is considered "homestead" property.
In Florida, property that is designated as homestead property is exempt from probate and may not be sold to satisfy creditor's claims unless the decedent's will expressly grants the authority to do so. Homestead property is typically the decedent's primary residence. If a decedent's will gives an executor the authority to sell homestead property so the proceeds may be distributed among beneficiaries, the decedent may sell the property without a court order.
- The Law Offices of Barbara Buxton, PA: Florida Probate, Estate & Inheritance Law
- Sunshine Online: 733.613 Personal Representative’s Right to Sell Real Property
- LandAmerica: What Is Probate?
- Statewide Probate: Florida Probate Administration Law and Right to Pass Title
- The Florida Bar: Florida Probate Rules
- Jonathan B. Alper, PLC: Asset Protection