Do All Heirs Have to Agree to Sell Property? Your Rights During Probate in Florida

Inheriting property can be both a blessing and a source of family conflict. One of the most common questions we hear at Vollrath Law is: “Do all heirs have to agree to sell property during probate?” This question often comes up when some family members want to sell an inherited home while others wish to keep it.

If you’re facing this situation in Florida, understanding your legal options can help you navigate this challenging time with greater confidence. Let’s explore what happens when heirs disagree about selling inherited property and what options are available.

Generally, Unanimous Consent is Required

In most cases in Florida, all heirs who inherit a property together must agree before the property can be sold. When multiple heirs inherit real estate, they typically become “tenants in common,” each owning an undivided interest in the entire property.

This means:

• Each heir has equal rights to access and use the entire property
• No heir can be excluded from the property by other co-owners
• Each heir has a responsibility to contribute to property expenses like taxes and maintenance
• Each heir must consent to sell the property as a whole

This requirement for unanimous consent often creates challenges when heirs have different financial needs or emotional attachments to the property. While one heir might need immediate cash, another might want to preserve a family home with sentimental value.

Can Heirs Be Forced to Sell Property During Probate?

Yes, but it depends on several factors.

During the probate process itself, whether heirs can be forced to sell depends primarily on:

• The terms of the will: If the will specifically directs the personal representative to sell the property and distribute the proceeds, this instruction generally overrides the heirs’ preferences.
• Estate debts: If the estate has significant debts or tax obligations that cannot be satisfied with other assets, the personal representative may be required to sell real estate to meet these obligations, regardless of the heirs’ wishes.
• Court orders: In some cases, the probate court may order the sale of property if it determines this is necessary for proper administration of the estate.

Outside of these scenarios, once the property passes to the heirs after probate, unanimous consent is typically required for a sale—unless one heir takes legal action.

How Partition Actions Work in Florida Inheritance Disputes

When heirs cannot reach an agreement about selling inherited property, Florida law provides a legal remedy called a “partition action.” This is essentially a lawsuit that asks the court to divide the property or, more commonly, force its sale when physical division isn’t practical (which is usually the case with residential property).

Here’s how a partition action typically works in Florida:

1. Filing the lawsuit: Any co-owner, regardless of their ownership percentage, can file a partition action in the county where the property is located.
2. Notification: All co-owners must be notified of the lawsuit and given an opportunity to respond.
3. Court evaluation: The court determines if the property can be physically divided among co-owners. For most residential properties, physical division isn’t feasible.
4. Court-ordered sale: If physical division isn’t possible, the court typically orders the property to be sold, often through a public auction or with a court-appointed real estate agent.
5. Distribution of proceeds: After the sale, the proceeds are divided among the co-owners according to their ownership interests, after covering the costs of the sale and the partition action.

The Pros and Cons of Partition Actions

Before pursuing a partition action, it’s important to understand both the advantages and disadvantages:

Advantages:

• Provides a legal solution when co-owners cannot agree
• Ensures each heir receives their fair share of the property’s value
• Ends an ongoing dispute that might otherwise continue indefinitely
• Creates final resolution and allows heirs to move forward

Disadvantages:

• Legal costs can be significant (though these are typically paid from the sale proceeds)
• The process can take months or even years to complete
• Court-ordered sales may not achieve the highest possible market price
• Family relationships may be damaged further
• The litigation process can be stressful and emotionally taxing

Alternatives to Forced Sales During Probate

Before resorting to a partition action, consider these alternative approaches:

1. Buyout Agreement

One or more heirs may agree to buy out the interests of those who want to sell. This allows some heirs to keep the property while providing others with their fair share in cash.

For this to work:

• The buying heirs need sufficient funds or financing to purchase the others’ shares
• All parties must agree on a fair valuation of the property
• The transaction should be documented with proper legal agreements

2. Mediation

A neutral third-party mediator can help facilitate productive discussions among heirs to reach a mutually acceptable solution. Mediation is:

• Less expensive than litigation
• More likely to preserve family relationships
• Often successful in finding creative solutions
• Confidential and less stressful than court proceedings

3. Property Use Agreements

If immediate sale isn’t necessary, heirs might agree to a property use agreement that establishes:

• Who can use the property and when
• How expenses will be shared
• A timeline for reevaluating the situation
• Conditions under which the property would be sold in the future

4. Rental Arrangements

Converting the property to a rental can provide income to all heirs while postponing the decision to sell. This requires:

• Agreement on how to manage the property
• Clear accounting of income and expenses
• Understanding of landlord-tenant laws
• Consideration of tax implications

Special Considerations for Florida Homestead Property

Florida’s homestead protections add another layer of complexity when the inherited property was the decedent’s primary residence. If the deceased owner was survived by a spouse or minor children, Florida’s constitution places strict limitations on how homestead property can be devised.

For example:

• If the decedent was survived by a spouse and descendants, the spouse typically receives a life estate with the descendants receiving the remainder interest
• These constitutional provisions override anything stated in a will
• Special probate proceedings are required to transfer homestead property

Understanding these homestead provisions is crucial when determining whether all heirs must agree to sell such property. In some cases, these provisions can actually prevent a sale without unanimous consent, even if a partition action is filed.

How to Proceed When Heirs Disagree

If you’re facing disagreement among heirs about selling property in Florida, here are practical steps to take:

1. Start with open communication: Convene a family meeting to discuss everyone’s concerns, needs, and emotional attachments to the property.
2. Get a professional property valuation: Understanding the true market value helps everyone make informed decisions.
3. Explore creative solutions: Consider the alternatives mentioned above before resorting to legal action.
4. Consult with an estate attorney: A lawyer experienced in Florida probate and real estate law can provide guidance specific to your situation.
5. Consider the long-term consequences: Weigh the financial benefits of selling against potential damage to family relationships.
6. Document any agreements: If you reach a solution, ensure it’s properly documented to avoid future disputes.

If you’ve exhausted all other options and still cannot reach an agreement, a partition action may be your only recourse. At Vollrath Law, we can help you:

• Determine if a partition action is appropriate for your situation
• Prepare and file the necessary legal documents
• Represent your interests throughout the legal process
• Work toward achieving the best possible outcome

When Heirs Disagree, Partition Actions Offer a Legal Path—Let’s Talk

So, do all heirs have to agree to sell property in Florida? While unanimous consent is typically required, legal mechanisms like partition actions do provide a way to force a sale when agreement isn’t possible.

However, the question shouldn’t be merely whether you can force a sale, but whether doing so is the best solution for your specific circumstances. Considering both the legal and emotional aspects of inherited property disputes can help you navigate this challenging situation with wisdom and foresight.

If you’re facing disagreement among heirs about selling property in Florida, contact Vollrath Law for a consultation. Our probate attorneys can help you understand your options and develop a strategy that protects your interests while minimizing family conflict whenever possible.

This blog provides general information about Florida law and is not intended as legal advice. Every situation is unique, so please consult with an attorney for guidance specific to your circumstances.