What Happens to the House? Florida Probate and Real Estate Explained

Inheriting a house can feel like a blessing but if the person who owned it passed away, it also comes with a big question: Does the house have to go through probate?

In Florida, the answer is: it depends. If you’ve lost a loved one and there’s a house involved, here’s

what you need to know about real estate and probate and how to move forward without

making costly mistakes.

Who Owned the Home (and How Was It Titled)?

Let’s start with the basics. Whether the house must go through probate depends on how it was titled and if anyone else was on the deed.

Probate is NOT Required If:

• The house was owned jointly with right of survivorship or as tenants by the entirety (typically for married couples): It passes automatically to the surviving owner.

• The home was titled in a trust: It avoids probate completely and passes according to the trust terms.

Probate Is Required when:

• The house was in the decedent’s name alone

• There’s no trust or co-owner

• The only named owner is now deceased

  
  

In this case, probate is required to transfer legal title to the heirs or beneficiaries.

What If There’s a Will?

If the decedent left a valid will, the property may pass to the people named in it, with some restrictions on homestead property, but it must still through the probate process.

For the property to pass to the beneficiaries, the Florida courts must first:

• Admit the will

• Appoint a personal representative

• Authorize the distribution of property (including real estate)

What If There’s No Will?

If someone died without a Will, then Florida’s intestacy laws apply. That means:

• If they were married with no kids ➝ the spouse inherits

• If they had kids from another relationship ➝ the spouse and kids split

• If they weren’t married ➝ it goes to their children or next of kin

Regardless, the home must go through probate to clear title.

What If The Property Was the Decedent's Homestead?

Florida Law does not consider a homestead property as a "probate asset," BUT the homestead is still required to go through the probate process in order to pass title to the heirs or beneficiaries.

Don’t Sell or Transfer the House Too Soon

This is where many people get tripped up. Even if you’re the heir or named in the will, you can’t sell or transfer the property until the probate court officially appoints a personal representative and grants permission to sell or distribute the property.

Trying to sell too early could cause title issues or invalidate the sale altogether.

What If There’s a Mortgage?

If the home has a mortgage:

• Payments still need to be made during probate

  • foreclosures are NOT stopped just because the owner of the house died

• Heirs can assume or refinance it (depending on the lender)

• The estate may sell the home to pay off the debt

  • limitations apply when the property is homestead

    
    

If the loan isn’t paid, the bank can still foreclose death of the borrower and even filing a probate doesn’t stop that.

Is the Home Protected from Creditors?

Yes, IF it qualifies as a Florida homestead.

Homestead property is protected from most creditors but things like Mortgages and leins on the property will follow the property. The homestead is protected from creditors like credit cards, judgments, medical debt.

Florida homestead laws are complex, talk to an experienced attorney before making assumptions.

Final Thought: Real Estate + Probate = You Need a Plan

In Florida, real estate can often makes probate more complicated but the right legal strategy can save time, stress, and money. Whether you’re trying to keep the home, sell it, or just figure out who owns what you don’t have to do it alone.

Contact us for a clear, compassionate plan for moving forward.