Quick Answer: In Florida, all heirs typically need to consent to sell inherited homestead property unless the will specifically instructs otherwise. Without unanimous consent, heirs may need to pursue a partition action through the courts to force a sale.
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:
- The Will either specifically devises the homestead to you and your sister; OR
- 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
- 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.
- 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.)
- 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.
- 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.
Multiple Heirs with Different Financial Needs When multiple heirs inherit Florida homestead property, financial situations often vary significantly. Some heirs may need immediate liquidity, while others prefer long-term investment. Common challenges include:
- Managing carrying costs (property taxes, insurance, maintenance) among heirs with different budgets
- Coordinating mortgage payments when some heirs can’t contribute
- Resolving disputes when some heirs want to sell while others wish to retain the property
- Creating fair buyout agreements between financially diverse heirs
Out-of-State Heirs and Property Management Florida inheritance cases frequently involve non-resident heirs, adding complexity to property management:
- Coordinating property decisions across different time zones and states
- Managing property maintenance from afar
- Handling Florida property taxes and homestead exemption changes
- Navigating Florida probate court requirements for out-of-state heirs
- Arranging property inspections and repairs remotely
Property Maintenance Disputes Inherited property maintenance often becomes a source of conflict:
- Determining fair cost-sharing arrangements between heirs
- Establishing maintenance responsibilities and schedules
- Managing emergency repairs when heirs disagree
- Handling insurance claims and coverage decisions
- Resolving disputes over property improvements versus basic maintenance
Tax Implications of Florida Inherited Property Understanding tax consequences helps heirs make informed decisions:
- Florida estate tax considerations
- Property tax reassessment after inheritance
- Capital gains implications for inherited Florida property
- Tax consequences of selling versus holding inherited property
- Step-up basis benefits for Florida inherited real estate
Heir Buy-Out Options and Solutions When heirs can’t agree on property disposition, several buy-out options exist:
- Structured payment plans between heirs
- Private mortgage arrangements for buying out co-heirs
- Real estate appraisal and fair market value determinations
- Partition sale alternatives and negotiations
- Third-party financing options for heir buyouts
Professional Support Requirements Complex inheritance situations often require:
- Florida probate attorney guidance
- Real estate appraisal services
- Property management assistance
- Tax professional consultation
- Mediation services for heir disputes
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.
