When someone passes away in Florida, their real property can only be sold by someone with the authority to sell it. Authority to sell real property depends on many factors, including the following:
Homestead – If the property was homestead and the deceased was married or had minor children at the time of death, then the property automatically transfers to the deceased’s spouse or minor children. The deceased’s spouse or minor children would have authority to sell the property. The minor children would need a guardian to help them sell the property since a minor child cannot enter a real estate contract in Florida.
Tenancy by the entirety – If the deceased owned the property with his or her spouse on title, then the property would automatically transfer to the deceased’s spouse. The deceased’s spouse would have authority to sell the property.
Joint tenancy with rights of survivorship – If the deceased owned the property with others as joint tenants with rights of survivorship, then the property would automatically transfer to the other joint tenants at the time of death. The other joint tenants would have authority to sell the property.
Trust – If the deceased owned the real property in a trust, then the trust may provide the trustee power to sell the property at the time of the deceased’s death. The trustee would have authority to sell the property.
Lady bird deed – A lady bird deed grants the owner a life estate in the property and enables the owner to name a beneficiary who would receive the property at the owner’s death. The beneficiary could sell the property at the owner’s death.
Will with power of sale – If the power of sale is granted to the deceased’s personal representative by will pursuant to Florida Statue 733.613, then the personal representative could sell the property.
If none of the above apply, and there is no way for the property to avoid probate, then probate is required and the deceased’s relatives will need to hire an attorney to open up a probate estate. Once the estate is open, the attorney could request an Order from the court that allows the deceased’s personal representative to sell the property. Only the personal representative of the estate would have authority to sell the property.