You grew up in a huge home overlooking the ocean. Your parents held onto that home throughout their life, and now they have passed. The home holds memorabilia dating back to your childhood. You’re busy with your own life and the thought of dealing with the Florida probate process and cleaning out the home is overwhelming. This is why estate sales have been popular as part of the probate process in Florida. Throughout the United States, there are about 15,000 estate sale companies helping people liquidate personal possessions.
To learn more about Florida probate rules and estate sales, keep reading. We’ll make sure you are knowledgeable on the subject before discussing the option with your Florida probate attorney.
What Is an Estate Sale?
An estate sale is a service that sells the items from a home, either before or after their death, via auction or an informal sale. The estate company contracts with the family or decedent’s personal representative to conduct the sale. The money from the sale goes to the estate for payment of bills or disbursement to beneficiaries.
The company comes into the home and sorts, prices, and sets up shelving, etc. to display the items available for purchase. This includes everything—tools, furniture, household items, collectibles, and more. The company conducts the sale, providing staff to run the sale and handle security.
There is no out-of-pocket cost for hiring an estate sale company. The company collects a commission, which is usually a percentage of the sales. Some companies collect a set commission without connection to the total sales amount.
Others use a sliding scale based on gross sales. For example, if your sales range from $5,000 to $10,000, they may collect a 50% commission. If sales exceed $10,000 up to $20,000, they may collect a 40% commission.
It pays to shop around before contracting with a company. Some companies charge as low as 20%, but they likely have a lower level of experience and not as many service options.
Compare what you are getting for what you pay. You want a company with solid reviews, experienced appraisers, and sufficient staff to manage the sale and security.
Legal Authorization for Estate Sale
Florida Probate code 733.612 gives the personal representative of an estate authorization to sell, mortgage, or lease any personal property of the decedent. This action must be in the best interests of all persons with an interest in the estate. People who have an interest include family members, relatives, and any other beneficiaries of the decedent’s estate.
In handling the sale or disbursement of the decedent’s estate, the personal representative must adhere to any written instructions from the decedent.
This includes all the distribution of property. If the decedent designated donation of their furniture to a non-profit or their coin collection to their sister, it cannot be part of the sale.
Does an Estate Sale Include Real Property?
There is a difference between an estate sale which handles the sale of personal property and selling the real property of the estate.
Florida Probate Code 733.613 and Florida Probate Rule 5.370 require a decedent’s will to include a power of sale clause for the property to be sold. The personal representative needs to get an order from the Florida probate court if this clause is not in the estate planning documents. The personal representative must request the court issue an order allowing them to sell the home.
Requirements are different if the property owner dies intestate. In that case, the personal representative files a petition with the Florida probate court. The petition requests the court grant permission to proceed with selling the home.
Personal representatives cannot sidestep petitioning the court. A title that does not have a power of sale clause, will not be clear for the sale without a court order.
The personal representative has a fiduciary duty to make sure a fair sale is made of the home. They will need to have the home appraised by a certified appraiser that meets court requirements.
This is a requirement whether selling or keeping the home in the family. Probate in Florida requires a valuation as of the date of death. The value of the home is necessary for estate tax purposes.
Prior to the home selling, the personal representative will be responsible for maintaining the home. This includes payment of all taxes, mortgage, HOA fees, repairs, and general maintenance. For the protection of the estate and its beneficiaries, the home should be sold at its market value or higher.
Can Real Estate Avoid Florida Probate?
In Florida, there are many ways to title real estate you purchase. It is important to understand that wording on the title determines ownership following your death.
- Sole Ownership—Without an estate plan or designation of a beneficiary, the property is subject to probate.
- Tenants in Common—People on the title have equal ownership and you may designate that upon death ownership transfers to your heirs.
- Joint Tenancy—All ownership must be equal and a decedent’s portion of ownership transfers to heirs upon death.
- Joint Tenants With Rights of Survivorship—Same as joint tenancy except if one person dies, the other owns the property without probate.
- Tenancy by the Entireties—Only available to married couples, when one spouse dies, ownership passes to the other without probate.
There are additional specialized ways of titling property. If you are not sure whether or not your property will pass directly to the other owner or need to go through probate court, speak with your Florida probate attorney.
Florida Probate Law Compliance
Florida probate must be conducted in accordance with probate law. In Florida, every personal representative must hire a Florida probate attorney. The only exception is if they are the only interested party in the estate.
Boyer Law Firm, P.L. will help you settle the estate, guide you through administration of the estate, draft petitions to open and close the estate, and handle any legal issues that arise. Contact Boyer Law Firm today at (904) 236-5317 to schedule a consultation.
