By your situation · When the estate includes a Florida home, condo or land

Real estate in the estate

How title to a Florida home, condo or land passes at death, and how protected homestead differs from other real property.

Death vests the right to devised property in the devisees (§ 732.514, Fla. Stat. (2026)) and the right to intestate property in the heirs (§ 732.101(2), Fla. Stat. (2026)). All real and personal property of the decedent in Florida, except the protected homestead, is an asset in the hands of the personal representative for payment of devises, family allowance, elective share, estate and inheritance taxes, claims, and expenses of administration, and for contribution and distribution (§ 733.608(1), Fla. Stat. (2026)).

Florida treats real property in three ways. Protected homestead is real property described in Art. X, § 4(a)(1), Fla. Const. on which the exemption passes to the surviving spouse or heirs, and it follows its own devise and descent rules (§ 731.201(33), Fla. Stat. (2026); § 732.4015(1), Fla. Stat. (2026); § 732.401(1), Fla. Stat. (2026)). Real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead and is not governed by the descent rule in § 732.401(5). All other real property is an ordinary estate asset.

The procedure depends on the estate. Summary administration ends in one order that assigns the estate to the persons entitled to it (§ 735.206(3), Fla. Stat. (2026)). It is available for an estate of $150,000 or less after exempt property, or when the decedent has been dead more than 2 years (§ 735.201(2), Fla. Stat. (2026)). Formal administration appoints a personal representative who receives letters (Fla. Prob. R. 5.235(b) (Oct. 15, 2026 ed.)). The status of protected homestead is decided on a petition under Fla. Prob. R. 5.405 (Oct. 15, 2026 ed.).

The implications

What this means for you

Protected homestead is decided by its own petition. An interested person may petition to determine the protected homestead status of real property the decedent owned, and the order names the persons entitled and defines each interest (Fla. Prob. R. 5.405(a) and (d)). See Determination of Homestead.
Homestead cannot be devised when a spouse or minor child survives. The homestead is not subject to devise if the owner is survived by a spouse or minor child, except that it may be devised to the owner's spouse if there is no minor child (Art. X, § 4(c), Fla. Const.; § 732.4015(1)).
Descent when the homestead is not devised. It descends as other intestate property, except that a surviving spouse with one or more descendants takes a life estate with a vested remainder to the descendants per stirpes (§ 732.401(1)). The spouse may instead elect an undivided one-half interest as a tenant in common, within 6 months after the death and during the spouse's lifetime (§ 732.401(2)(b)).
Creditors. The constitutional exemption from forced sale has three stated exceptions: taxes and assessments on the property, obligations contracted for its purchase, improvement or repair, and obligations contracted for labor performed on the realty (Art. X, § 4(a), Fla. Const.). Protected homestead is not an asset in the personal representative's hands (§ 733.608(1)).
Selling estate real property. In an intestate estate, or where the will gives no power of sale, the personal representative may sell real property at public or private sale, and no title passes until the court authorizes or confirms the sale. Where the will gives a specific power to sell or a general power to sell any estate asset, the sale needs no court authorization or confirmation (§ 733.613(1) and (2), Fla. Stat. (2026)). Under a specific power of sale or a court order authorizing or confirming the sale, the purchaser or lender takes title free of claims of creditors of the estate and entitlements of estate beneficiaries, but existing mortgages and other liens against the property are not affected (§ 733.613(3)).
After an order of summary administration, bona fide purchasers for value from those to whom the order assigns property take the property free of the decedent's creditors' claims and of the rights of the surviving spouse and other beneficiaries (§ 735.206(4)(c)).
Mortgage. A devisee of encumbered property is entitled to have the encumbrance paid from the residue only when the will shows that intent, and a general direction to pay debts does not show it (§ 733.803, Fla. Stat. (2026)). For a loan on residential property of fewer than five dwelling units, a lender may not exercise a due-on-sale clause on a transfer to a relative resulting from the death of the borrower (12 U.S.C. § 1701j-3(d)(5)).
Income tax basis. The basis of property acquired from a decedent is its fair market value at the date of the decedent's death, unless an exception in the statute applies (26 U.S.C. § 1014(a)(1)).
Property tax. The homestead exemption goes to a person who, on January 1, holds legal or beneficial title and makes the property a permanent residence in good faith (§ 196.031(1)(a), Fla. Stat. (2026)). Assessed value resets to just value on January 1 of the year after a change of ownership, except for listed transfers, including a transfer by operation of law to a surviving spouse or minor child under § 732.401 (§ 193.155(3)(a), Fla. Stat. (2026)).

The fit

Which path applies

Each path below links to its page with the statutes and rules that apply.

Summary Administration

Estate of $150,000 or less after exempt property, or a death more than 2 years ago; one order assigns the property (§ 735.201(2); § 735.206(3))

Clerk fee up to $340 + $4

Formal Administration

No value limit; a personal representative with letters; sale authority under § 733.613

Clerk fee up to $395 + $4

Ancillary Administration

The decedent was not domiciled in Florida and owned Florida property (§ 734.102(1))

Clerk fee up to $395 + $4

Determination of Homestead

Petition under Fla. Prob. R. 5.405 for an order naming who holds protected homestead

§ 28.2401(1)

The pitfalls

Common problems

Each item cites the statute or rule it comes from.

Treating protected homestead as an ordinary estate asset. The personal representative has no right to take possession or control of protected homestead (§ 733.607(1)). When property appears to be protected homestead and no interested person occupies it, the personal representative may, but need not, take possession to preserve, insure and protect it pending a determination (§ 733.608(2)).
Assuming jointly titled property passes through probate. Real property held in tenancy by the entireties or joint tenancy with rights of survivorship is not protected homestead and is outside the descent rule for homestead (§ 731.201(33); § 732.401(5)).
Sale before authority exists. A personal representative who has no power of sale in the will cannot pass title until the court authorizes or confirms the sale (§ 733.613(1)). Letters issue only after the petition is filed and the court appoints the personal representative (Fla. Prob. R. 5.235(a) and (b)).
Missing the spouse's election period. The surviving spouse's election of a one-half interest in the homestead must be made within 6 months after the death and is irrevocable once made (§ 732.401(2)(b) and (d)).
Using the purchase price as basis. For property acquired from a decedent, basis is fair market value at the date of death, not the decedent's cost (26 U.S.C. § 1014(a)(1)).
Assuming the property tax exemption transfers. The exemption depends on title and permanent residence on January 1 (§ 196.031(1)(a)). A change of ownership resets the assessed value unless an exception in § 193.155(3)(a) applies.
Co-owners who disagree about selling. Any one of several joint tenants or tenants in common may file an action for partition against the co-owners (§ 64.031, Fla. Stat. (2026)). If the commissioners report that the land cannot be divided without prejudice to the owners, the court may order a sale and division of the proceeds in proportion to interest (§ 64.071(1), Fla. Stat. (2026)).

The FAQ

Frequently asked questions

Can the house be sold during probate?+−

Yes, with the authority the statute requires. Without a power of sale in the will, the personal representative may sell estate real property and no title passes until the court authorizes or confirms the sale; with a specific power to sell or a general power to sell any estate asset, no court authorization or confirmation is needed (§ 733.613(1) and (2), Fla. Stat. (2026)). Protected homestead is not an estate asset and passes under § 732.401 or a permitted devise (§ 733.608(1)).

Who pays the mortgage while the estate is open?+−

The statutes read for this page do not name who must make the payments. A personal representative may pay taxes, assessments and other expenses incident to administration, insure estate assets, and retain assets pending distribution (§ 733.612(1), (13) and (16), Fla. Stat. (2026)). The loan contract controls the payments. A devisee takes encumbered property subject to the debt unless the will shows an intent to have it paid from the residue (§ 733.803).

Can a lender call the mortgage because the owner died?+−

For a loan on residential property of fewer than five dwelling units, federal law bars a lender from exercising a due-on-sale clause on a transfer to a relative resulting from the death of the borrower, and on a transfer by devise, descent or operation of law on the death of a joint tenant or tenant by the entirety (12 U.S.C. § 1701j-3(d)). The loan terms otherwise remain in effect.

What happens to a reverse mortgage when the borrower dies?+−

For a HUD home equity conversion mortgage, the mortgage states that the outstanding balance is due and payable in full if a borrower dies and the property is not the principal residence of at least one surviving borrower. Due-and-payable status is deferred for an eligible non-borrowing spouse who meets the Deferral Period requirements (24 C.F.R. § 206.27(c)).

Does the homestead exemption on the property tax bill pass to the heirs?+−

Not by itself. The exemption goes to a person who holds title on January 1 and makes the property a permanent residence in good faith (§ 196.031(1)(a), Fla. Stat. (2026)). The assessment cap resets at a change of ownership, with exceptions for transfers to a surviving spouse or minor child under § 732.401 and for a permanent resident who was legally or naturally dependent on the owner (§ 193.155(3)(a), Fla. Stat. (2026)).

Do the heirs get a stepped-up basis?+−

Yes, in general. The basis of property acquired from a decedent is its fair market value at the date of the decedent's death, unless the statute provides an exception (26 U.S.C. § 1014(a)).

Can heirs force a sale if they disagree?+−

Yes, through a partition action. Any one of several joint tenants or tenants in common may file against the co-owners, and the action is in chancery (§ 64.031, Fla. Stat. (2026); § 64.011, Fla. Stat. (2026)). If the land cannot be divided without prejudice to the owners, the court may order a sale at public auction (§ 64.071(1), Fla. Stat. (2026)). Each party is bound to pay a share of costs, including attorneys' fees, in proportion to the party's interest (§ 64.081, Fla. Stat. (2026)).

Does a home count toward the $150,000 summary administration limit?+−

Protected homestead does not. The limit applies to the value of the entire estate subject to administration in Florida less property exempt from the claims of creditors (§ 735.201(2), Fla. Stat. (2026)), and protected homestead is real property exempt under Art. X, § 4(a)(1), Fla. Const. (§ 731.201(33)). A home that is not protected homestead counts at its value.

Does a second home or vacant land need its own probate?+−

Venue for probate is the county where the decedent was domiciled; if the decedent was not domiciled in Florida, any county where the decedent's property is located (§ 733.101(1), Fla. Stat. (2026)). A nonresident decedent's Florida property is administered through ancillary administration (§ 734.102(1), Fla. Stat. (2026)). The statutes read for this page do not require a separate Florida proceeding for each parcel of a Florida decedent.

In short

Florida real estate in an estate raises three questions: whether the property is protected homestead (§ 731.201(33)), what the income tax basis is (26 U.S.C. § 1014(a)(1)), and what authority the personal representative has to sell (§ 733.613). Each has a statutory answer.

Last checked: October 19, 2026

Sources

Each source below was read on the date shown. Statute links open the 2026 edition on the Florida Senate site.

§ 732.514, Fla. Stat. (2026), Vesting of devises. The Florida Senate. Death vests the right to devises. Plain-English page on this site.
§ 732.101(2), Fla. Stat. (2026), Intestate estate. The Florida Senate. Death vests the heirs' right to intestate property. Plain-English page on this site.
§ 733.608, Fla. Stat. (2026), General power of the personal representative. The Florida Senate. Assets in the hands of the personal representative exclude protected homestead; preservation of homestead pending determination; lien. Plain-English page on this site.
§ 733.607, Fla. Stat. (2026), Possession of estate. The Florida Senate. Personal representative does not take possession of protected homestead. Plain-English page on this site.
§ 733.613, Fla. Stat. (2026), Personal representative’s right to sell real property. The Florida Senate. Sale of real property with and without a power of sale.
§ 733.612, Fla. Stat. (2026), Transactions authorized for the personal representative; exceptions. The Florida Senate. Powers to pay taxes and expenses, insure and retain assets. Plain-English page on this site.
§ 733.803, Fla. Stat. (2026), Encumbered property; liability for payment. The Florida Senate. Payment of encumbrances on devised property.
§ 733.101, Fla. Stat. (2026), Venue of probate proceedings. The Florida Senate. Venue by domicile or location of property. Plain-English page on this site.
§ 732.4015, Fla. Stat. (2026), Devise of homestead. The Florida Senate. Limits on devising homestead. Plain-English page on this site.
§ 732.401, Fla. Stat. (2026), Descent of homestead. The Florida Senate. Descent, spouse's life estate and one-half election, entireties and joint tenancy exclusion. Plain-English page on this site.
§ 731.201(33), Fla. Stat. (2026), General definitions. The Florida Senate. Definition of protected homestead. Plain-English page on this site.
§ 735.201, Fla. Stat. (2026), Summary administration; nature of proceedings. The Florida Senate. Eligibility and value limit. Plain-English page on this site.
§ 735.206, Fla. Stat. (2026), Summary administration distribution. The Florida Senate. Order of summary administration and effect on purchasers.
§ 734.102, Fla. Stat. (2026), Ancillary administration. The Florida Senate. Ancillary letters for a nonresident decedent's Florida assets. Plain-English page on this site.
§ 196.031, Fla. Stat. (2026), Exemption of homesteads. The Florida Senate. Homestead tax exemption depends on title and permanent residence on January 1. Plain-English page on this site.
§ 193.155, Fla. Stat. (2026), Homestead assessments. The Florida Senate. Reassessment at just value after a change of ownership and exceptions.
§ 64.031, Fla. Stat. (2026), Parties. The Florida Senate. Who may file a partition action.
§ 64.011, Fla. Stat. (2026), Jurisdiction. The Florida Senate. Partition actions are in chancery.
§ 64.071, Fla. Stat. (2026), Sale where nondivisible. The Florida Senate. Sale of land that cannot be divided.
§ 64.081, Fla. Stat. (2026), Costs; taxes; attorneys’ fees. The Florida Senate. Costs and fees in partition.
Art. X, § 4, Fla. Const., Homestead; exemptions. The Florida Senate, Florida Constitution. Homestead exemption from forced sale, its exceptions, passage to the surviving spouse or heirs, and limits on devise.
Fla. Prob. R. 5.405, Proceedings to determine protected homestead status of real property. The Florida Bar, Florida Probate Rules (Oct. 15, 2026 ed.). Petition, contents, notice and order.
Fla. Prob. R. 5.235, Issuance of letters, bond. The Florida Bar, Florida Probate Rules (Oct. 15, 2026 ed.). Letters issue after the court appoints the personal representative.
26 U.S.C. § 1014, Basis of property acquired from a decedent, Basis of property acquired from a decedent. U.S. House of Representatives, Office of the Law Revision Counsel. Basis equals fair market value at the date of death.
12 U.S.C. § 1701j-3, Preemption of due-on-sale prohibitions, Preemption of due-on-sale prohibitions. U.S. House of Representatives, Office of the Law Revision Counsel. Lender may not call a residential loan on a transfer to a relative resulting from the death of a borrower.
24 C.F.R. § 206.27, Mortgage provisions, Mortgage provisions. U.S. Department of Housing and Urban Development, Code of Federal Regulations. Due and payable status of a home equity conversion mortgage when a borrower dies.

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