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PROBATE & HOMESTEAD: How Not to Let Them Derail Your Deal

By: Tony Lavargna, Esq., Lavargna Law, PLLC, Stuart, and a Member of The Fund

Probate can be a deadly word for real estate closings, but it doesn’t have to be. There are some initial aspects of Probate that we can help navigate for our clients to make sure that a real estate deal stays on course.

The first question is whether the seller is the Personal Representative of the Estate (a/k/a Executor or Executrix), or if the seller is an heir under a Will or by law, such as a spouse, son, or daughter. A Personal Representative is usually nominated in a Will and has authority over the “Probate Estate.” This generally includes the ability to dispose of real and personal property. The Personal Representative in Florida must be appointed by a Judicial Order. Seeing a copy of a Will where a Personal Representative is named is not enough. The specific and magic documents we are looking for are called “Letters of Administration” and “Order Appointing Personal Representative.”

The second question to ask is the nature of the property. A home the deceased used as a rental is handled much differently in Probate than the primary home (the “Homestead”) of the deceased. If the client does not know if the deceased claimed the property as Homestead, a quick search of the property tax record will uncover if a Homestead tax exemption is applied.

This is when it gets difficult. Homestead property in Probate is not considered part of the “Probate Estate.” This confusing aspect of Probate is found under Florida Statute 733.607. It means that the Personal Representative may have no control or ability to sell Homestead property. This is an important distinction when a Personal Representative comes to you to sell a property. If the property is tied up in a Probate Estate prepare to investigate.

If a proper judicial determination of Homestead status is obtained, getting a Homestead Order from a Judge is the final step. If that legal proceeding is noticed to all interested parties properly, the Judge will usually issue this type of Order from his or her chambers. The persons on the Homestead Order (which is often blocked from public viewing records by the Clerk of Court) are the persons who have the authority to sell the property.

Determining the parties who have authority to sell a property of a deceased person can be a complex issue that often requires the consult of an attorney who is experienced in both real estate closings and Homestead matters. Following the above two steps will save you and your clients time, money, and headache – and make you look like an expert.                          

The opinions of any particular author are not necessarily the opinions of Attorneys' Real Estate Councils of Florida any of the local Real Estate Councils or Attorneys’ Title Fund Services, LLC.