Florida Probate Question of the Day:
My mom, thankfully still alive at age 85, has informed my sister and I that under the terms of her will, we split everything 50-50. There are no other heirs. Mom’s greatest asset is her house, which she owns free and clear (no mortgage). If my sister and I won’t consent to sell it, can I sell my interest in it?
Allow me to make a few assumptions before responding:
1. The Will either specifically devises the homestead to you and your sister; OR
2. The Will makes no specific reference to the homestead but has a “residuary” clause which generally leaves all property to you and your sister; AND
3. The Will does not specifically instruct the Personal Representative to sell the homestead and distribute the proceeds.
(If the Will does specifically instruct the Personal Representative to sell the homestead and split the proceeds, then your question is moot.)
Otherwise, without the consent of all heirs, there is no specific mechanism in Florida probate law to simply sell an heir’s fractional interest in homestead property.
Homestead Property and the Probate Process
You may hear from time to time that a Homestead is a non-probate asset. While this is legally accurate, if there is no surviving spouse, transfer of the homestead property will require an order from a probate court.
1. You and your sister will need to probate your mother’s Will to transfer title to the property after her death (unless she transfers the property during her lifetime.)
2. Once you and your sister receive title from the probate court (likely via a “Hometead Determination Order”), it is no longer the probate court’s concern. In other words, what you and your sister decide to do with the property is completely up to you two.
3. If you want to sell and she does not want to buy you out, the only option would be to pursue a “partition” action wherein a judge will eventually force you two to sell the property and split the proceeds.
Tenants in common hold an “undivided” interest in the property.
Typically, when you inherit property with other heirs, you own the property as “tenants in common”.
This means each tenant has full access to the property even then only own a percentage. It is difficult for each tenant in common to sell to a 3rd party – buyers usually shy away. So again, a partition action is probably your only recourse if your sister won’t buy you out and otherwise refuses to sell.
The short answer is yes (with exceptions!) All heirs will likely need to consent in order to sell the homestead property. Note that the assumptions upon which I have based this response are born from the overwhelming number of “form” Wills and “online” Wills that I’ve seen (yet another reason to consider having an attorney custom prepare your Will!) Remember, one size does not fit all.