What probate is

Probate confirms whether a will is valid, appoints someone to manage the estate, gives creditors a chance to be paid, and transfers the remaining assets to the people entitled to them. The person in charge is called a personal representative in Florida and many other states, and an executor or administrator elsewhere.

Real estate usually goes through probate in the state where it is located. If the owner lived in one state and owned a house in another, a second proceeding, often called ancillary probate, may be needed where the house sits.

Property that usually avoids probate

  • Homes held in a living trust
  • Property owned jointly with right of survivorship
  • Property owned by a married couple as tenants by the entirety, in states that recognize it
  • Homes transferred by a transfer-on-death deed, in states that allow them
  • In Florida, homes transferred by an enhanced life estate deed, often called a lady bird deed

The typical probate steps

  • A petition is filed with the probate court, usually in the county where the person lived.
  • The court admits the will, if there is one, and appoints a personal representative.
  • The personal representative receives letters of administration, the document that proves their authority.
  • Creditors are notified and given a set period to file claims.
  • Assets are inventoried, debts and expenses are paid, and property is sold or distributed.
  • The estate is closed once distributions are complete.

What happens to the house during probate

The house still has bills. The mortgage, property taxes, insurance, utilities, and any association dues continue while the estate is open, and the personal representative is responsible for protecting the property. Many homes in probate sit empty, which brings risks such as undetected leaks, break-ins, and insurance problems.

Heirs can sometimes live in the home during probate, but that should be agreed with the personal representative, especially when other heirs are entitled to a share.

Selling a house in probate

The personal representative can sell the house once they have authority to do so. Depending on the state, that authority may come from the will, from the court's appointment, or from a specific court order approving the sale. Some states require the court to confirm the sale price, while others let the personal representative sell with little court involvement.

Buyers familiar with probate understand that timelines depend on the court. A direct buyer can typically sign a contract that allows time for any required approval and buy the house in its current condition, which helps when the estate has little cash for repairs.

How long probate takes and what it costs

A simple estate may be resolved in a few months. Many take longer, and estates with disputes, missing heirs, or tax issues can take a year or more. Costs can include court filing fees, attorney fees, publication of the creditor notice, appraisals, and in some cases a bond.

Probate in Florida

Florida offers summary administration for smaller estates, generally $75,000 or less excluding exempt property, or when the person died more than two years ago. Otherwise formal administration applies, including a creditor period of generally three months from first publication of the notice to creditors. A personal representative can sell real estate when the will grants a power of sale or the court authorizes it.

Florida's homestead protections can also limit who inherits the home when the owner leaves a spouse or minor child, which affects who must sign at closing. Our guide to selling an inherited house in Florida covers these rules in more detail.

Frequently asked questions

Can a house be sold before probate is opened?

Usually not, if the property was in the deceased person's name alone. Someone must be appointed with authority to sell first. Homes in a trust or with a surviving joint owner are different, because they generally pass outside probate.

Who pays the mortgage while the house is in probate?

The estate is generally responsible for the mortgage, taxes, and insurance while it is being administered. Heirs sometimes pay these costs to protect the property and seek reimbursement from the estate.

Does a probate sale have to be approved by a judge?

It depends on the state and on the personal representative's authority. In Florida, a personal representative can sell when the will grants a power of sale; otherwise a court order is generally needed.

This guide is general information, not legal, tax, or financial advice. Laws change and every situation is different, so talk with a qualified professional about yours.