Inheriting real estate or other property can be a complicated process, especially when multiple heirs are involved. In Florida, probate is typically required to transfer the legal title of a property to heirs after someone dies. This often makes heirs co-owners, known as tenants in common, unless special arrangements have been made.

So what happens if one heir wants to sell an inherited home or property, but another refuses? Can an heir sell their individual interest without getting agreement from the other heirs?

Unfortunately, selling inherited property in Florida is not always straightforward, even among agreeable heirs. Let’s look at some key considerations.

Passing Title to Heirs Requires Probate in Florida

When someone dies owning real estate or other property solely in their name in Florida, probate proceedings are usually needed to transfer legal title to the person’s heirs. This is true even if there is a will leaving the property to designated beneficiaries.

Without probate, heirs do not have clear legal authority to access, manage, or sell assets they inherit. The title essentially remains in the decedent’s name until transferred by a probate court order.

For real property like a home, vacation home, or land, a common probate document used is called a Homestead Order. This order specifies the property address and fractional interests being transferred to each heir after confirming its homestead status.

Once the court issues the order, the title can be updated in the heirs’ names, either as joint tenants or tenants in common. This probate process is required even if the deceased person has a will.

Tenants in Common vs. Joint Tenants with Rights of Survivorship

When multiple heirs inherit property together, they typically become tenants in common under Florida law. This means each heir owns an undivided fractional interest in the whole property that can be bought and sold independently.

For example, if a parent’s house gets divided equally among 3 children through probate, each child would become a 1/3 tenant in common. They all have equal rights to use the entire property.

With joint tenancy, also known as rights of survivorship, heirs own the property together, but it passes entirely to the surviving joint tenant upon an owner’s death. Joint tenancy requires specific language on a deed or title.

Without rights of survivorship established on a property deed or title, tenants in common are the default when multiple heirs inherit real estate together in Florida.

Selling an Inherited Property with a Tenant in Common Ownership

When heirs own Florida property as tenants in common, any co-owner can sell their interest without needing consent or agreement from other co-owners. However, selling the entire property requires cooperation from all co-owners.

For example, if a vacation home gets divided equally among 4 siblings through probate, each sibling becomes a 25% tenant in common. If one sibling wants to sell their 25% stake, they can do so independently. They can advertise and sell their fractional interest to anyone without needing approval from their 3 co-owning siblings.

However, none of the siblings could sell the entire vacation property without the other 3 siblings agreeing to the sale. Unanimous consent is needed to sell a property in its entirety.

This creates challenges if one heir wants to liquidate their share through a sale, but other co-owning heirs want to keep the property. It is difficult finding third-party buyers willing to purchase a partial interest in a property occupied by others. Banks usually will not finance fractional property purchases either.

What if One Heir Refuses to Sell a Property?

Sometimes, an heir may be unwilling or unable to buy out a co-owner’s share, wanting to sell their inherited interest in a Florida property. When this happens, the only recourse to force a total property sale against another heir’s wishes is to file a partition action in court.

A partition lawsuit essentially asks a judge to compel the sale of an entire co-owned property, with proceeds divided among heirs according to their ownership percentages. However, judges consider partition actions a last resort when co-owners are unable to reach an agreement.

Before ordering a forced sale, courts will encourage heirs to explore other options first, like:

  • One heir buys out the other heir’s share
  • Co-owners establishing an ownership agreement, like rotating usage days
  • All co-owners agree to list and sell the property jointly

If none of these voluntary solutions get mutually accepted, the judge can ultimately order the property to be sold and the net proceeds distributed. However, this legal process takes time and money. All co-owning heirs will incur legal expenses.

Plus, a court-ordered sale rarely maximizes the potential sales price. Listing on the open market with willing co-owners almost always yields a higher value. But partition actions become the only path forward when heirs remain stalemated.

Can an Executor Sell Property Without All Heirs Agreeing?

In Florida, an executor named in a will does not have automatic power to sell property owned solely by the deceased. As outlined above, real estate transfers require probate proceedings, even if a will states otherwise.

However, if a will specifically instruct the executor to sell a property, they can request court approval after the asset gets transferred to heirs through probate. This may enable a sale without getting unanimous consent.

Still, judges will examine whether a forced sale appears in all heirs’ best interests before granting the executor’s request. Any heir can challenge the proposed sale in court as well.

Absent explicit instructions in a will, executors in Florida cannot sell inherited real estate without agreement from all beneficiary heirs after it gets distributed through probate. This highlights the importance of outlining intentions to grant an executor sale authority within wills and estate plans.

What Steps Are Involved for Heirs Selling Inherited Property?

Once heirs agree to sell inherited real estate, what steps should they take to make it happen? Here is an overview of the process:

  • Consult a qualified real estate attorney to handle legal aspects like title transfers.
  • If probate is still ongoing, the executor lists and sells the property through standard processes.
  • If probate is concluded, but heirs inherited joint ownership, all heirs should sign listing agreements and sales contracts.
  • Get the property appraised to determine fair market value and agree on the listing price.
  • Prepare the property for sale by making any needed repairs and removing clutter.
  • Market the inherited property through an agent or independently.
  • Review all offers, negotiate terms, and accept a buyer’s offer.
  • The executor or heirs sign the purchase contract depending on the status of probate.
  • Facilitate needed inspections, appraisals, and other contingencies.
  • Ensure the buyer secures financing if required.
  • Review the closing disclosure and prepare for closing.
  • Complete the closing process to transfer legal ownership to the buyer.
  • Distribute sale proceeds to heirs according to the estate plan or heirs’ agreement.

Properly executing all steps legally and punctually helps heirs sell inherited property for the highest possible price.

Speak with a Florida Estate Planning Attorney

Navigating Florida’s probate laws around inheriting and selling real estate can be complex for both heirs and executors. An experienced estate planning attorney can help you understand the options.

The estate planning lawyers at Stivers Law serve Miami residents and property owners across Florida. They can guide heirs and executors through the nuanced probate and real estate laws involved with transferring title to inherited homes, investment properties, vacation homes, and land.

Whether you want to preserve inherited property or need to coordinate a sale with co-owning heirs, they can provide knowledgeable legal counsel on your best course of action.

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