Selling an inherited Florida home: who can sign, probate steps, mortgage and taxes
Who has authority to sell an inherited Florida home, when a court order is required, what happens to the mortgage, how the federal basis rule and the home-sale exclusion apply, and what changes on the property tax bill, each with its official source.
A Florida home can be sold while probate is open. The seller needs authority to convey title, and that authority depends on how title was held at death: a personal representative with letters of administration, a successor trustee, a surviving joint owner, or the heirs of a protected homestead. A court order is required in some estates and not in others (Table 1).
For federal income tax, the heir's basis is the fair market value at the date of death, not the decedent's purchase price (26 U.S.C. § 1014(a)(1)). Florida imposes no personal income tax or inheritance tax (Florida Department of Revenue, Tax Information for New Residents) and no estate tax for deaths after December 31, 2004 (Florida Department of Revenue, Estate Tax), both accessed October 17, 2026. The Sources section lists every authority on this page, last checked October 17, 2026.
Can a house be sold while in probate in Florida?
Yes, once the person signing the deed has authority. Real property of the decedent, other than protected homestead, is an asset in the personal representative's hands for paying devises, family allowance, taxes, claims and administration expenses (§ 733.608(1), Fla. Stat. (2026)). Title to a devise vests at death (§ 732.514), and the heirs' right to intestate property vests at death (§ 732.101(2)). Vesting at death does not give the heirs the personal representative's power to sell estate property, so a sale from the estate starts with letters of administration.
| Title at death | Who signs the deed | Court order needed | Source |
|---|---|---|---|
| Decedent alone; the will gives a specific power to sell real property or a general power to sell any estate asset | Personal representative | No. The personal representative may sell without authorization or confirmation by the court, and the sale need not be justified by necessity. | § 733.613(2) |
| Decedent alone; no will, or the will gives no power of sale, or the power is so limited it cannot be conveniently exercised | Personal representative | Yes. No title passes until the court authorizes or confirms the sale. | § 733.613(1) |
| Protected homestead | The person or persons who take the homestead (devisee or heirs), not the personal representative | An order determining protected homestead status is the usual title record. The Probate Rules set the petition. | § 733.608(1); Fla. Prob. R. 5.405 |
| Revocable trust | Successor trustee | No. A trustee may sell trust property for cash or on credit. | § 736.0816(2) |
| Tenancy by the entirety | Surviving spouse | Not addressed by the cited statute. An estate by the entirety is excepted from the rule that a conveyance to two or more creates a tenancy in common; on dissolution of marriage the tenants become tenants in common. | § 689.15 |
| Joint tenancy with right of survivorship | Surviving owner | Not addressed by the cited statute. Survivorship applies only if the instrument expressly provides it; without those words the owners are tenants in common. | § 689.15 |
| Summary administration | The persons the order assigns the property to | The order of summary administration. A bona fide purchaser from an assignee takes free of the decedent's creditors' claims and the rights of other beneficiaries. | § 735.206(4)(a), (c) |
Sources: the statutes and rule in the last column. Transfer on a Lady Bird deed is covered in the Lady Bird deed guide. Disposition without administration (§ 735.301) covers personal property only and does not transfer a house.
When the court must approve the sale
§ 733.613(1) applies to an intestate estate and to an estate whose will gives no power of sale, or a power limited so that it cannot be conveniently exercised. The personal representative must consider the sale to be in the interest of the estate and of those interested in it. The sale may be public or private, but no title passes until the court authorizes or confirms it. A bona fide purchaser is not required to examine any proceedings before the order of sale.
In a sale under a specific power in the will, or under a court order authorizing or confirming the sale, the purchaser takes title free of claims of creditors of the estate and entitlements of estate beneficiaries. Existing mortgages and other liens on the real property are not affected (§ 733.613(3)).
§ 733.612 lists what a personal representative may do without a court order. Paragraph (5) covers acquiring or disposing of an asset "excluding real property in this or another state," which is why a sale of real property rests on the will's power or on § 733.613.
A sale to the personal representative, or to the personal representative's spouse, agent or attorney, or to an entity in which any of them has a substantial interest, is voidable by any interested person unless the will or a contract of the decedent expressly authorized it, the court approved it after notice, or the interested person consented after fair disclosure (§ 733.610).
Protected homestead: who sells
Protected homestead is not an asset in the personal representative's hands under § 733.608(1), and the personal representative has no right to take possession of it under § 733.607(1). If property that reasonably appears to be protected homestead is unoccupied, the personal representative may take possession to preserve, insure and protect it pending a determination of homestead status, and may record a lien for those expenses (§ 733.608(2)-(4)).
Who takes a protected homestead depends on the family. Under Art. X, § 4(c), Fla. Const. the homestead cannot be devised if the owner is survived by a spouse or minor child, except that it may be devised to the spouse if there is no minor child (§ 732.4015(1)). If it is not devised as the law allows, it descends as intestate property, but a surviving spouse with one or more descendants takes a life estate with a vested remainder to the descendants (§ 732.401(1)).
In place of the life estate, the surviving spouse may elect an undivided one-half interest as a tenant in common. The election must be made within 6 months after death and during the spouse's lifetime, by recording a notice of election, and it is irrevocable (§ 732.401(2)). The homestead guide covers the rules: what a homestead really protects.
Any interested person may petition for an order determining protected homestead status. The verified petition states the date of death, the county of domicile, whether the decedent died testate, whether a spouse survived and any waiver, the names of descendants and minor children, the legal description, how title was held and other facts. It is served by formal notice, and the order names the persons entitled and defines each interest (Fla. Prob. R. 5.405).
Documents a sale from an estate uses
The buyer's title insurer sets its own underwriting requirements, so ask the title agent for its list before the property is listed. The records Florida law and the Probate Rules produce for a sale from an estate are in Table 2.
| Record | What it shows | Source |
|---|---|---|
| Letters of administration (certified copy) | The personal representative's appointment and authority. Issued after the oath, the resident-agent designation and any required bond. | Fla. Prob. R. 5.235; § 733.402 |
| Will and order admitting it to probate | Whether the will gives a power to sell real property | § 733.613(2) |
| Order authorizing or confirming sale | Required when the estate is intestate or the will gives no usable power of sale | § 733.613(1) |
| Order determining protected homestead status | Who takes the homestead and in what interest | Fla. Prob. R. 5.405 |
| Certified death certificate | Date of death. Ordered from the Florida Department of Health. | Florida Department of Health, Death Certificates (accessed October 17, 2026) |
| Mortgage payoff letter and lien estoppel | Existing mortgages and liens are not affected by a personal representative's sale. A personal representative's homestead-preservation lien requires an estoppel letter within 14 days of a written request. | § 733.613(3); § 733.608(6) |
| Notice to the Agency for Health Care Administration | If the decedent was 55 or older, the personal representative must serve the notice to creditors and a death certificate on the Agency within 3 months after first publication, unless the Agency has already filed a claim. | § 733.2121(3)(d) |
Creditor claims and the sale
A sale does not wait for the claims period to end. A claim that arose before death is barred unless filed on or before the later of 3 months after first publication of the notice to creditors or 30 days after service on a creditor who must be served (§ 733.702(1)). Two years after death, neither the estate, the personal representative nor the beneficiaries are liable for claims, with the exceptions in § 733.710.
Sale proceeds remain estate assets until the personal representative pays expenses and claims and distributes under the will or the intestacy statute. The order of payment is in § 733.707(1): administration costs first, then funeral expenses up to $6,000, then preferred debts and taxes, last-illness medical expenses, family allowance and the remaining classes.
Mortgage on the inherited home
A lender may not call a residential mortgage due because of a transfer to a relative resulting from the death of the borrower, or a transfer where the borrower's spouse or children become an owner of the property (12 U.S.C. § 1701j-3(d)(5), (6), Garn-St Germain Act).
Under Regulation X, a person who receives an ownership interest from a borrower on death is a "successor in interest" (12 C.F.R. § 1024.31). On notice of the borrower's death the servicer must promptly facilitate communication with potential successors in interest (12 C.F.R. § 1024.38). Where state law requires no probate proceeding to establish the successor's interest, the CFPB commentary says it generally would not be reasonable for the servicer to require documentation of a probate proceeding. The documents a servicer may require to confirm identity and ownership interest must be reasonable in light of the law of the jurisdiction, the successor's situation and the documents the servicer already has; the commentary lists a death certificate, an executed will or a court order as examples where appropriate (12 C.F.R. § 1024.38, Official Interpretation of Paragraph 38(b)(1)(vi), comment 2).
At closing, the payoff is deducted from the sale price. The mortgage stays on title until paid (§ 733.613(3)).
Reverse mortgage
A Home Equity Conversion Mortgage becomes due and payable after the death of the borrower and of any coborrower or eligible non-borrowing spouse. Once heirs receive the due-and-payable notice, they have 30 days to buy, sell or turn the home over to the lender. The CFPB states the period may be extended up to six months to sell the home or obtain a loan to buy it (CFPB, heirs and a reverse mortgage, accessed October 17, 2026).
- Keep the home. The heirs repay the full balance or 95 percent of the appraised value, whichever is less (CFPB, accessed October 17, 2026).
- Sell the home. The heirs sell, repay the loan and keep any difference. If the home is worth less than the loan, a sale for at least 95 percent of the appraised value pays it off, and the borrower's mortgage insurance covers the rest (CFPB, accessed October 17, 2026).
- Eligible non-borrowing spouse. A spouse who meets HUD's criteria may stay in the home. Foreclosure must begin within six months of death if the servicer decides to foreclose or the spouse does not qualify; the spouse may request a delay of up to 180 days while trying to sell (CFPB, accessed October 17, 2026).
Several heirs, one house
If the heirs agree, the personal representative sells under the will's power of sale or under a court order and distributes the proceeds. If they disagree, a co-owner can ask a circuit court for partition. All partition actions are in chancery (§ 64.011).
Since July 1, 2020, partition of "heirs property" follows the Uniform Partition of Heirs Property Act, chapter 64, part II. Real property held in tenancy in common is heirs property when no agreement governs partition, at least one co-owner acquired title from a relative, and 20 percent or more of the interests or of the co-owners are relatives (§ 64.202(6); § 64.203).
| Step | What the statute provides | Source |
|---|---|---|
| 1. Value | The court orders an appraisal by a disinterested real estate appraiser licensed in Florida, unless all co-owners agree on a value or valuation method, or the court finds the appraisal's evidentiary value is outweighed by its cost and, after an evidentiary hearing, determines the value itself. Parties have 30 days after notice of the appraisal to object, and the hearing is not sooner than 31 days after notice. | § 64.206 |
| 2. Buyout | If a co-owner asked for a sale, any other co-owner may elect within 45 days after notice to buy all the interests of the co-owners who asked for a sale, at the court-determined value multiplied by each interest's fraction. | § 64.207(1)-(3) |
| 3. Payment | Electing co-owners pay into court on a date not sooner than 60 days after notice. | § 64.207(5) |
| 4. Division or sale | If no one buys out, the court orders partition in kind unless commissioners find it would prejudice the co-owners as a group. Otherwise it orders a sale. | § 64.208; § 64.209 |
| 5. Accounting | On request the court determines an equitable accounting for contributions and adjusts any price or judgment. | § 64.206 |
Sources: §§ 64.202-64.209, Fla. Stat. (2026). The commissioners weigh whether the property can be divided, value as a whole against in kind, length of family ownership, sentimental attachment, current use, and each co-owner's share of taxes, insurance and upkeep (§ 64.209(1)).
Federal income tax on the sale
Basis. The heir's basis is the fair market value at the date of death, or the value on the alternate valuation date if the estate elects it (26 U.S.C. § 1014(a)(1)-(2)). Fair market value is the price at which property would change hands between a willing buyer and a willing seller, neither under compulsion and both with reasonable knowledge of the facts (26 C.F.R. § 20.2031-1). When Form 706 is filed or required, the estate tax value is the basis (Pub. 551, Inherited Property; Pub. 523, Home Inherited). When it is not, Pub. 523 says the basis is the appraised value at the date of death used for state inheritance or transmission tax purposes. Florida has no estate tax for deaths after December 31, 2004 (Florida Department of Revenue, Estate Tax, accessed October 17, 2026), so no state value exists, and a date-of-death valuation is the record of the figure. Pub. 551 requires accurate records of every item that affects basis.
Holding period. Inherited property is treated as held for more than one year, however short the actual period (26 U.S.C. § 1223(9); Pub. 544). Any gain is long term.
Who reports. After death the estate is a separate taxpayer. An estate reports a sale on its income tax return, Form 1041, and an heir who receives the house and sells it reports on the heir's own return (Pub. 559).
| Line | Amount | Rule |
|---|---|---|
| Decedent bought the home in 1985 | $80,000 | Not used. The decedent's cost does not carry over. |
| Fair market value at date of death | $650,000 | Basis, 26 U.S.C. § 1014(a)(1) |
| Sale price one year later | $660,000 | Amount realized |
| Selling expenses (commissions, closing costs the seller pays) | $30,000 | Reduce the amount realized, IRS Pub. 523 |
| Gain or loss | $660,000 - $30,000 - $650,000 = loss of $20,000 | Basis, not the $80,000 cost, is subtracted |
An illustration with assumed numbers, not a rule or a quote. Had the decedent sold the day before death, the taxable gain would have been measured from the $80,000 cost.
The result in Table 4 is a loss, which shows why a prompt sale at the appraised value usually produces little or no gain. IRS Topic 409 states that losses from the sale of personal-use property, such as a home, are not deductible, and Pub. 544 says the same for property held for personal use. Whether an inherited house the heir never lived in is personal-use property or property held for investment or rental depends on the facts, so confirm the treatment with the heir's tax preparer before claiming a loss. A deductible net capital loss is limited each year, as IRS Topic 409 explains (accessed October 17, 2026).
2026 capital gains rates and the home-sale exclusion
Rev. Proc. 2025-32, section 3.03, sets the 2026 taxable income at which the 0 percent and 15 percent long-term rates end. The 20 percent rate applies above the 15 percent amount. The 3.8 percent net investment income tax can apply to an individual above $200,000 of modified adjusted gross income ($250,000 married filing jointly), and to an estate or trust above its own threshold (IRS Topic 559, accessed October 17, 2026).
| Filing status | 0 percent through | 15 percent through |
|---|---|---|
| Single (all other individuals) | $49,450 | $545,500 |
| Married filing jointly and surviving spouse | $98,900 | $613,700 |
| Head of household | $66,200 | $579,600 |
| Estates and trusts | $3,300 | $16,250 |
Source: Rev. Proc. 2025-32, section 3.03, Internal Revenue Service.
Home-sale exclusion. An heir who sells may exclude up to $250,000 of gain ($500,000 on a joint return where both spouses meet the use test) only if the heir owned the home and used it as a main home for at least 24 months of the 5 years before the sale (26 U.S.C. § 121; Pub. 523). Pub. 523 counts a late spouse's years of ownership and use only for a surviving spouse who has not remarried.
Surviving spouse. A surviving spouse who has not remarried may count the late spouse's time of ownership and use, and may take the $500,000 exclusion if the sale occurs within 2 years after the date of death and the other conditions in Pub. 523 are met.
Joint ownership. When spouses held the home as tenants by the entirety or joint tenants with right of survivorship, one-half of the value is included in the decedent's estate. The survivor's basis is the cost of the survivor's half plus the date-of-death value of the half inherited (Pub. 551, Qualified Joint Interest; 26 U.S.C. § 2040(b)). The stepped-up basis guide covers other assets.
Property tax after the transfer
Homestead property is assessed at just value as of January 1 of the year after a change of ownership. Annual increases afterward are capped at the lower of 3 percent or the change in the Consumer Price Index (§ 193.155(1), (3)(a)). The reset does not apply to a transfer between spouses, a transfer by operation of law to a surviving spouse or minor child under § 732.401, or, on the owner's death, a transfer to a permanent resident who is legally or naturally dependent on the owner (§ 193.155(3)(a)2.-4.).
An heir who is not within those exceptions is assessed at just value after the transfer. If the heir does not live in the home, the property is nonhomestead residential property, assessed at just value and then limited to 10 percent annual increases, and a change of ownership resets it again (§ 193.1554(2), (3), (5)). An heir who moves in applies to the county property appraiser for the homestead exemption on or before March 1, as the person who holds legal title on January 1 (§ 196.011(1)).
Listing steps in order
The steps follow the rules above. Each links to the authority.
- 1. Identify title. Read the deed and any trust: sole name, joint, entirety, trust or Lady Bird deed (Table 1).
- 2. Get authority. Letters of administration, or the trustee's certification, or the homestead order (Fla. Prob. R. 5.405).
- 3. Check the will for a power of sale. If it gives none, ask the court to authorize or confirm the sale (§ 733.613(1)).
- 4. Notify the mortgage servicer. Send the death certificate and proof of the ownership interest (12 C.F.R. § 1024.38).
- 5. Record the date-of-death value. Keep the valuation with the sale records (Pub. 551).
- 6. Agree on the sale among heirs. A written agreement on price and who handles the sale avoids a partition action (Table 3).
- 7. Close. The mortgage payoff comes out of the sale price; the personal representative's deed conveys title (§ 733.613(3)).
- 8. Report. The seller reports the sale on Form 1041 or the heir's return; keep the basis records (Pub. 523).
Sources
Last checked: October 17, 2026. Statutes are cited to the 2026 Florida Statutes on the Florida Senate site.
- § 733.608, § 733.607, § 733.610, § 733.612 and § 733.613, Fla. Stat. (2026). Powers of the personal representative; sale of real property.
- § 733.2121, § 733.702, § 733.707 and § 733.710, Fla. Stat. (2026). Notice to creditors; claims; order of payment.
- § 733.402, Fla. Stat. (2026). Bond of fiduciary.
- § 732.101, § 732.514, § 732.401 and § 732.4015, Fla. Stat. (2026). Vesting; descent and devise of homestead.
- § 735.206 and § 735.301, Fla. Stat. (2026). Summary administration distribution; disposition without administration.
- § 736.0816, Fla. Stat. (2026). Specific powers of trustee.
- § 689.15, Fla. Stat. (2026). Estates by survivorship.
- § 64.011 and §§ 64.202-64.209, Fla. Stat. (2026). Partition; Uniform Partition of Heirs Property Act.
- § 193.155, § 193.1554 and § 196.011, Fla. Stat. (2026). Homestead assessment; nonhomestead residential assessment; exemption application.
- Art. X, § 4, Fla. Const.. Homestead.
- Fla. Prob. R. 5.235 and 5.405, Florida Probate Rules, October 15, 2026 edition, The Florida Bar.
- 26 U.S.C. § 1014, § 1223, § 121 and § 2040. Basis; holding period; home-sale exclusion; joint interests.
- 26 C.F.R. § 20.2031-1. Valuation of property in general.
- IRS Publication 551 (12/2025), Basis of Assets; Publication 523 (2025), Selling Your Home; Publication 544 (2025); Publication 559 (2025). Accessed October 17, 2026.
- IRS Topic 409 and Topic 559, accessed October 17, 2026.
- Rev. Proc. 2025-32, section 3.03. 2026 capital gains rate amounts.
- 12 U.S.C. § 1701j-3; 12 C.F.R. § 1024.31; 12 C.F.R. § 1024.38. Due-on-sale exceptions; successors in interest.
- Consumer Financial Protection Bureau: heirs and a reverse mortgage; reverse mortgage at death. Accessed October 17, 2026.
- Florida Department of Revenue, Tax Information for New Residents (GT-800025, R. 08/25); Estate Tax. Accessed October 17, 2026.
- Florida Department of Health, Death Certificates, accessed October 17, 2026.
- Ch. 2026-57, Laws of Fla., effective July 1, 2026. Amends § 735.201(2) (summary administration, $75,000 to $150,000), § 735.303 (payment to successor without court proceedings, $1,000 to $2,000) and § 735.304(1) (intestate small estates, $10,000 to $20,000). See the probate cost guide.
What people ask us about this.
Can a house be sold while in probate in Florida?
How long after death can an inherited house be sold in Florida?
Does the heir pay capital gains tax on an inherited house?
Does the Save Our Homes cap pass to the person who inherits the home?
What happens to a reverse mortgage when the borrower dies?
Can the lender call the mortgage due when the owner dies?
What if one heir wants to sell and another does not?
Can an inherited house be sold at a loss, and is the loss deductible?
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