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Court order may be necessary before home can be sold

March 9, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler,

My mother recently passed away, and left no will. I am her only child, so my attorney said I was the sole beneficiary, and I was named the personal representative of the estate. I received an offer on my mom's house which isn't great, but I don't have the ability to maintain the property, so I want to keep it. Do I have the power as personal representative to sell the property? The probate proceeding just started.

- Blair S.

Dear Blair,

I have previously discussed several ways to avoid the costs and hassle of probate, but it appears it could not be avoided here. As personal representative (Florida's version of the "executor"), you have authority to manage the affairs of the estate. However, since there is no will granting the personal representative the authority to sell real property, the court will need to issue an order authorizing the sale. Your probate attorney can assist you with this. However, if she had a will that provided powers for the personal representative to sell real property, such an order would not be required. You do, however, have the authority to enter into the contract to sell the property, but you should note in the contract it is contingent on approval of the court and completion of certain probate proceedings. It's always best to be up front with potential buyers about expected delays due to probate. In this case, it shouldn't take more than a few weeks to obtain that order.

Additionally, your attorney may be petitioning the court to determine the homestead status of the property. If it is homestead, most unsecured creditors of the estate would not be able to claim the value of the home to satisfy their claims. Secured creditors, like mortgages, still would have a claim against the property, even if ruled a homestead.

Finally, although you do wish to move forward quickly, you may want to check with a few Realtors or appraisers about the value of the property. By taking a few extra days to research this situation, you may benefit by thousands more in sales price. I wish you all the best.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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