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Does Florida state law require that an estate go into probate in the event the seller in a real estate transaction passes away prior to closing?

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Does Florida state law require that an estate go into probate in the event the seller in a real estate transaction passes away prior to closing?

Yes, if the seller is the owner of the property which is not in joint tenancy with right of survivorship or something similar (such as a transfer on death deed).

A will is meaningless until it has been admitted to probate (which is a term that in the narrow sense means "validating the authenticity and validity of a will). Likewise, an adjudication that someone had no will cannot be made without a probate proceeding. There is no exception for a clear an uncontested will. "Will" means "probate" pretty much by definition.

This doesn't mean, however, that the closing of the property has to waive until the probate proceeding including a full administration of the probate estate and closing of the probate estate is required. Often, a will can be admitted to probate and an executor can be appointed to manage the estate in a matter of a few weeks to a few months if there is no contest to either the validity of the will or the appointment of a particular person as an executor.

Generally, once the executor is appointed in the probate case, the real estate closing can go forward, sometimes with some additional uncontested motion practice. Once the property is sold, the proceeds are put in an estate bank account pending further administration of the estate's assets and liabilities. Indeed, even if the will is contested, as long as a consensus can be reached among the interested parties regarding who the executor should be, the real estate closing could go forward despite the fact that the will is contested.

Powers of attorney are sometimes granted to real estate agents to complete a transaction in the event of a seller's incapacity. But powers of attorney are void no later than the point at which the person with the power of attorney learns of the death. (The common law rule was that a power of attorney was void at the moment of death, even if no one involved in the transaction knew that fact yet.)

The only person with authority to sign the deed to sell the property, if the property is titled in the name of the seller individually, with no co-owner (or with a tenant-in-common co-owner), is the probate estate's executor.

The real estate contract is a claim in the probate estate, which the probate estate is required to carry out if it is able to do so. But a real estate contract, in and of itself, doesn't transfer the property by operation of law at closing. Until the probate estate is opened, the buyer doesn't even have anyone who can be sued to demand that the real estate contract be performed.

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