Probate isn't a word people enjoy hearing when they're dealing with a parent's death or a sibling's estate. It sounds slow, complicated, and expensive. And sometimes it is. But for most Florida families, it's manageable once you understand what's actually required before inherited property can be sold or transferred.
I've worked alongside families navigating probate real estate in Miami-Dade for years. Here's a plain-English version of how the process works in Florida so you know what to expect.
When Real Property Goes Through Probate in Florida
Probate is the court-supervised process of settling a deceased person's estate. When someone dies owning property in their name alone, without a joint owner, a beneficiary designation, a Lady Bird deed, or a properly funded living trust, that property typically has to go through probate before it can be sold or transferred to heirs.
Florida law provides several ways real estate can bypass probate entirely:
- Joint tenancy with right of survivorship: the property passes automatically to the surviving co-owner.
- A revocable living trust that was properly funded: the trust owns the property, not the individual, so probate isn't triggered.
- An enhanced life estate deed (Lady Bird deed): allows the owner to transfer property at death without probate while retaining full control during their lifetime.
- Tenancy by the entirety: a Florida-specific form of joint ownership for married couples that passes outside probate.
If none of those apply and the property was titled solely in the decedent's name, it goes through the probate court in the county where the decedent lived. For Miami-Dade, that's the Eleventh Judicial Circuit Court.
Formal vs. Summary Administration
Florida has two main probate tracks. Which one applies depends on the size of the estate and the circumstances of the case.
Summary Administration is a simplified process available when the total probate estate (not counting homestead property) is valued at $75,000 or less, or when the decedent died more than two years ago. It can often be resolved in one to three months and doesn't require the full apparatus of formal administration.
Formal Administration is the complete probate process required for most larger estates. A personal representative is appointed by the court. Creditors are notified. Assets are inventoried. Debts and taxes are paid. Whatever remains goes to the heirs. For a straightforward estate, formal administration typically takes six to twelve months from filing to closing. Complex estates with disputes or significant creditor claims take longer.
The Personal Representative's Role
The personal representative (what other states call an executor) is the person legally authorized to manage the estate and its assets during probate. Florida law requires the personal representative to be either a Florida resident or a close family member of the decedent (spouse, child, parent, or sibling) if they live out of state.
The personal representative has a fiduciary duty to act in the best interests of all beneficiaries. For real property, their responsibilities include maintaining and insuring the property during the probate period, paying property taxes and carrying costs from estate funds, deciding whether to sell or distribute the property, and if selling, executing the listing agreement and purchase contract on behalf of the estate.
Their authority comes from Letters of Administration, a court-issued document confirming their appointment. Title companies and real estate agents require these letters before proceeding with any estate sale transaction.
Can You Market and Sell the Property While Probate Is Still Open?
Yes. In Florida, a personal representative with Letters of Administration can list and sell estate property while formal probate is still pending. The sale proceeds become part of the estate and are distributed to heirs after all debts and costs are satisfied.
In some cases, the court requires approval before a sale can close. This depends on the terms of the will and specific court orders in the case. A probate attorney can tell you quickly whether your estate requires court confirmation on a specific transaction. It's one of the first things I ask when working with a personal representative client.
For buyers, purchasing from an estate sale is generally straightforward. The title company handles the mechanics, and probate sales typically carry clear title insurance. But buyers should understand that timelines can be less predictable than standard sales. Court scheduling and attorney availability affect closing dates in ways that a motivated individual seller can't control.
Typical Timeline: 4 to 12 Months for Probate Real Estate in Florida
Families often ask me: how long before we can sell the house? The honest answer depends on where you are in the process when you start.
If probate hasn't been opened yet, add 4 to 8 weeks to file the petition and receive Letters of Administration. Then comes a 3-month creditor notification period that must run before the estate can be fully distributed. A sale can still proceed during this window, but closing can't happen until any legitimate creditor claims are resolved. For a straightforward formal administration, total time from death to a closed real estate sale often runs 7 to 12 months.
Summary Administration, where it qualifies, can be much faster. Sometimes 60 to 90 days from filing to resolution.
The Stepped-Up Basis: A Major Tax Advantage
One of the most significant financial benefits for heirs who inherit Florida real estate is the stepped-up cost basis under current federal tax law. Inherited property receives a new tax basis equal to the fair market value at the date of the decedent's death.
Here's a real example. A parent bought a home in Coral Gables in 1975 for $120,000. It's now worth $1.4 million. If the parent had sold it, capital gains taxes would apply to roughly $1.28 million of gain. When the property passes through the estate and an heir sells it, the new basis is $1.4 million. If the heir sells for $1.4 million, capital gains tax is effectively zero.
This is why it often makes more financial sense for families to sell estate property through probate rather than having the owner transfer it as a gift before death. A CPA familiar with estate tax matters can run the numbers for your specific situation.
Common Mistakes Heirs Make
- Waiting too long to open probate. The longer you wait to file, the longer you wait to sell. If the family plans to sell the property, filing promptly after death starts the clock on the entire process.
- Not maintaining the property. An uninsured, unmaintained property is a liability during probate. Leaks, HOA violations, vandalism, and deferred maintenance create costs that exceed what prevention would have cost.
- Using an agent without probate experience. A standard listing agreement written for a typical transaction doesn't account for estate sale requirements. Work with someone who has done this before.
- Letting family disagreements stall decisions. A property sitting vacant in Miami-Dade generates real costs every month: taxes, insurance, maintenance, sometimes HOA fees. Delay is never free, even when the disagreement feels necessary.
- Missing portability. If an heir plans to use the inherited property as a primary residence in Florida, they may be able to carry over the prior homestead's Save Our Homes differential through a portability filing.
If you're dealing with an inherited property in Miami-Dade and aren't sure where to start, visit our probate resources page or reach out directly. I work regularly with estate attorneys and personal representatives throughout the county. For an attorney referral, the Florida Bar's lawyer referral service is a good place to begin.