Forcing the Sale of Real Estate in the Probate Court

In Florida, the family home is protected by the state constitution and homesteaded property of a deceased family member is automatically inherited by the family at the time death, regardless of whether the loved one had a will or not. Just like it would have been during their lifetime, the home is shielded from claims by the deceased owner’s creditors. However, this protection applies only to the main residence of the deceased. It is important to note that the home passes outside the probate estate.  This means that a personal representative can’t sell the protected homestead because it’s not part of the probate estate. This ensures that the heirs inherit the property and that it’s not lost to creditors or sold to pay estate expenses. 

In the event that the heirs can’t agree on how to share ownership, they can file for partition in the probate court pursuant to F.S. §733.814 and Fla. Prob. R. 5.025. The relevant statute is below:  

733.814 Partition for purpose of distribution.—When two or more beneficiaries are entitled to distribution of undivided interests in any property, the personal representative or any beneficiary may petition the court before the estate is closed to partition the property in the same manner as provided by law for civil actions of partition. The court may direct the personal representative to sell any property that cannot be partitioned without prejudice to the owners and that cannot be allotted equitably and conveniently.

Florida law requires a court first determine that the property cannot be divided fairly among the heirs without causing any harm. The court can also give the personal representative of an estate the power to sell the property privately without having to hold a public auction. This helps to protect the interests of all parties involved.

Service of the Petition

When someone files a petition for partition in probate court, they’ll need to give you formal notice. This notice tells you that you have 20 days to respond to the lawsuit. Rule 5.040(a) says that the notice must be served in a way that requires a signature from the person receiving it. This can be done by service of process, which is the legal way of delivering documents, or by other methods allowed by Florida law.

Notably, partition can also be filed by the siblings, brothers, sisters, heirs and other owners outside of probate by filing of an independent action in the Circuit Court, such as where the probate estate has already been closed.

West Palm Beach partition lawyer

Whether you’re considering filing for partition or have been served with a Complaint, it’s in your best interest to speak with a competent lawyer who knows the ropes. You can call Palm Beach area partition lawyer Andrew J. Pascale at 877-667-1211 to discuss your options in confidence.  The firm serves Broward, Miami-Dade, and Palm Beach Counties.  This blog isn’t a substitute for legal advice.