Last updated September 27, 2026
Selling a House Held in a Living Trust in Florida: Trust Sale vs Probate Sale
Short answer: If the house was actually deeded into a revocable living trust before death, it does not go through probate. The successor trustee sells it under the trust instrument and section 736.0816(2), Florida Statutes, signing as trustee; the title company will want a certification of trust (section 736.1017), the death certificate and the recorded deed into trust, and the trustee must file a notice of trust with the court (section 736.05055). The most common failure is a house that was never deeded into the trust, which sends it straight back to probate.
Key takeaways
- Title, not the trust document, decides: a trust that lists the house on its schedule does nothing if the deed to the trustee was never recorded.
- The trustee has statutory power to sell (s. 736.0816(2)) unless the trust instrument limits it; no court order is involved.
- Buyers dealing with a trustee under a recorded deed reciting the power to sell need not inquire into the beneficiaries (s. 689.073).
- The trustee owes the beneficiaries a duty of loyalty (s. 736.0802); a sale to the trustee or a favored beneficiary is voidable without authorization or informed consent.
- A trust sale saves the wait for Letters and any court order, typically months; the closing itself runs on an ordinary timeline.
Informational purposes only. This is not legal advice and no attorney-client relationship is created by reading it. PBP Real Estate, LLC is a licensed Florida real estate brokerage (License CQ1064615), not a law firm. Speak to a Florida estate or trust attorney about the trust you are administering, and to a CPA about anything involving money or tax.
Is the house actually in the trust?
This is the first question and it is answered by the county's official records, not by the trust binder. A revocable living trust only holds the real property that was conveyed to it by a recorded deed naming the trustee as grantee. Families regularly arrive with a professionally drafted trust whose schedule of assets lists the house, and a last recorded deed that still shows the decedent individually. The trust was funded on paper and never funded in the records office.
When that happens the house is a probate asset. A pour-over will may direct it into the trust eventually, but only after administration, Letters and, if the will lacks a power of sale, a court order under section 733.613. Everything on this page about a trust sale then stops applying, and the personal representative's guide to selling applies instead.
We pull the last recorded deed from the county official records before we take any listing described to us as a trust sale, and we send it to the attorney with the listing paperwork. If the grantee is not the trustee, the family needs to know that week, not at the title commitment.
Who sells, and under what authority?
| Question | Trust sale | Probate sale |
|---|---|---|
| Who signs | Successor trustee, as trustee of the named trust | Personal representative, as personal representative of the estate |
| Source of authority | Trust instrument plus s. 736.0816(2) (power to sell at public or private sale) | Letters of Administration plus a will power of sale, or a court order (s. 733.613) |
| Court involvement in the sale | None; a notice of trust is filed (s. 736.05055) but the court does not supervise | None with a power of sale; authorization or confirmation without one |
| Buyer's protection | Recorded deed reciting trustee powers: no duty to inquire into beneficiaries or authority (s. 689.073) | Buyer under a power of sale or court order takes free of estate creditors and beneficiaries (s. 733.613(3)) |
| Duty owed | Loyalty to beneficiaries (s. 736.0802); prudent administration | Fiduciary standard of a trustee (s. 733.602) |
| Where proceeds go | Trust account, then distribution under the trust | Estate account, then claims, expenses and distribution |
The trustee's power is broad but not unlimited. Section 736.0816 opens with "except as limited or restricted by this code," and the trust instrument itself may require beneficiary consent, a minimum price, or a right of first refusal for a named child. We read the sale provisions of the trust with the attorney before pricing, because a restriction discovered at contract is a restriction that costs the buyer.
What does the title company need from a trustee?
- Certification of trust under section 736.1017. Instead of handing over the whole instrument, the trustee certifies that the trust exists and when it was signed, who the settlor is, who the current trustee is and their address, what the trustee's powers are, whether any power of direction exists, whether the trust is revocable or irrevocable and who may revoke it, and how title to trust property should be taken. Underwriters may still ask for the pages that name the successor trustee and grant the power of sale.
- Settlor's death certificate, establishing that the successor trustee's authority has begun.
- Successor trustee's acceptance of the trusteeship, and resignation or death evidence for any prior trustee.
- The recorded deed into trust. If it recites the trustee's power to sell, section 689.073 means the buyer takes free of the claims of named or unnamed beneficiaries and has no duty to inquire into the trustee's authority.
- Notice of trust filed with the court under section 736.05055, and confirmation whether a probate estate has been opened alongside the trust for other assets.
- The usual property items: mortgage payoff, tax status, association estoppel, open permits.
We ask for the first four before a trust listing is entered in BeachesMLS. A trustee who cannot produce them is, in a title insurer's eyes, not yet a trustee who can convey.
How much time does a trust sale really save?
The saving is at the front, not the back. A formal probate sale cannot be signed until Letters of Administration issue, which commonly takes a few weeks to a couple of months from filing, and on the court-order track cannot close until the court authorizes or confirms. A trust sale can go to market as soon as the trustee has accepted, gathered the documents above and confirmed the deed, which is usually a matter of weeks. From listing to closing the two run on the same market: the same buyers, the same inspection and financing periods, the same title work.
Two things can slow a trust sale that families do not expect. First, section 736.05053 requires the trustee to pay the settlor's estate expenses and obligations that the personal representative certifies in writing, so a trust that holds the house while a small probate handles other assets may need to keep proceeds available for estate claims rather than distributing at closing. Second, the trustee's own duty of care usually calls for a written opinion of value before accepting an offer, so that no beneficiary can later say the house was sold cheaply. Neither delays the listing; both affect when the money moves.
Is a homestead in a trust still protected homestead?
Placing a home in a revocable trust does not switch off Article X, section 4 of the Florida Constitution. Section 732.4015(2) says that, for the restriction on devise, "owner" includes the grantor of a revocable trust and "devise" includes a disposition by trust of what would have been the grantor's homestead. A trust that tries to leave the house away from a surviving spouse or a minor child faces the same constitutional obstacle a will would, and the trustee cannot simply sell over it. Whether the exemption from creditors and the property tax exemption continue after death depends on the trust's terms and who benefits. The full treatment is on homestead property in a Florida probate; the trust wrinkle is one for the estate's attorney.
Can the trustee sell to themselves or to one beneficiary?
A successor trustee who is also a beneficiary and wants to keep the house is in the same position as a personal representative who wants to buy from the estate. Section 736.0802(1) requires the trustee to administer the trust solely in the interests of the beneficiaries, and subsection (2) makes a sale of trust property for the trustee's own account, or one affected by a conflict between the trustee's fiduciary and personal interests, voidable by an affected beneficiary unless the trust authorized it, the court approved it, the beneficiary consented or ratified it, or another statutory exception applies.
The workable path is the same one we use in probate: an independent written opinion of value delivered to every beneficiary at the same time, then either written consents after full disclosure or whatever the attorney advises. We do not list a trust property for a purchase by the trustee without that direction in writing.
What the trustee should have ready before calling a broker
| Item | Why it matters |
|---|---|
| Last recorded deed | Confirms the house is in the trust; if not, this is a probate sale |
| Trust pages naming the successor trustee and granting the power to sell | Confirms who signs and whether any restriction applies |
| Certification of trust (s. 736.1017) | What the title company will rely on |
| Death certificate and trustee acceptance | Establishes when authority began |
| Notice of trust filed (s. 736.05055) | Statutory requirement; also tells the title agent whether a probate is open |
| List of beneficiaries and their expectations | Loyalty duty runs to all of them; surprises at closing are avoidable |
| Mortgage statement, tax bill, association contact | Payoffs and estoppel drive the closing date |
Where we fit
We are not lawyers and we do not interpret trust instruments. What we do is the property: confirming title in the records before anyone relies on it, a written opinion of value prepared by hand from current BeachesMLS sales so the trustee can document a prudent price to every beneficiary, preparation and marketing that start the week the trustee is ready, and a closing coordinated with the title agent's trust checklist so that nothing waits on paperwork. If a family does not yet have an estate attorney, we can refer several who handle Palm Beach and Broward trusts and estates regularly.
Related
- Stepped-up basis: what the heirs owe in tax when they sell
- Selling an inherited condominium: assessments, estoppel and the association
- Probate real estate in South Florida — the full guide for executors, personal representatives and trustees
- Personal representative's guide to selling a house in Florida probate — when the house was not in the trust
- Homestead property in a Florida probate
- When heirs disagree about selling an inherited house
- Do I need probate to sell my parents' house in Florida?
- Date-of-death home value — the figure a trustee documents at the settlor's death
See what the property is worth
A trustee's first duty on the house is knowing what it is worth. Gia Freer, our Broker of Record, prepares a written opinion of value from our own BeachesMLS data. No automated estimate is published on this site and no price here is produced by software.
Selling a house in a living trust: questions and answers
Does a house in a living trust go through probate in Florida?
Not if the deed actually placed it in the trust. Property titled in the trustee's name is not part of the decedent's probate estate; the successor trustee administers it under the trust instrument and the Florida Trust Code, chapter 736. If the deed into trust was never signed or never recorded, the house is still in the decedent's name and passes under the will or intestacy, which means probate, even if the trust document lists the house on its schedule of assets.
Who has authority to sell a house in a trust after the owner dies?
The successor trustee named in the trust instrument, once they have accepted the trusteeship. Section 736.0816(2), Florida Statutes, gives a trustee the power to acquire or sell property for cash or on credit at public or private sale, except as limited by the trust instrument itself. The trustee signs the listing agreement, the contract and the deed as trustee, not personally, and owes the beneficiaries a duty of loyalty under section 736.0802 to administer the trust solely in their interests.
What does a title company need to insure a sale by a trustee?
Typically a certification of trust under section 736.1017, which states that the trust exists, its date, the settlor, the current trustee and address, the trustee's powers and whether the trust is revocable; the settlor's death certificate; the successor trustee's acceptance; and the recorded deed showing title in the trustee. Where the deed itself recites the trustee's power to sell, section 689.073 relieves the buyer of any duty to inquire into the beneficiaries or the trustee's authority. Some underwriters also ask for the trust's relevant pages.
Does the trustee have to file anything with the court?
Yes. Under section 736.05055 the trustee of a revocable trust must file a notice of trust with the court of the county where the settlor was domiciled when the settlor dies, stating the settlor's name and date of death, the trust's title and date, and the trustee's name and address. It is a filing, not a proceeding; the court does not supervise the sale. The trustee also has a duty under section 736.05053 to pay the settlor's estate expenses and obligations that a personal representative certifies in writing, if the probate estate cannot.
How much faster is a trust sale than a probate sale?
A trust sale can usually be listed within weeks of the death, once the trustee has accepted, gathered the documents above and confirmed the deed; a formal probate sale waits for Letters of Administration, which commonly takes a few weeks to a couple of months from filing, and then possibly a court order under section 733.613. The closing itself is not faster: a trust sale runs on the same contract, inspection, financing and title timeline as any other sale.
Is a homestead in a living trust still protected homestead?
A revocable trust does not remove the constitutional restrictions on devise. Section 732.4015(2) treats the grantor of a revocable trust as the owner and a disposition by trust of what would have been the homestead as a devise, so a trust that leaves the home away from a surviving spouse or minor child faces the same problem a will would. Whether the creditor protection and the tax exemption continue depend on the trust's terms and who benefits, which is a question for the estate's attorney.
Can the successor trustee sell the house to themselves or to one beneficiary?
Only if the trust instrument allows it or every beneficiary consents with full knowledge, and even then carefully. Under section 736.0802 a transaction involving trust property entered into by the trustee for the trustee's own personal account, or one affected by a conflict between fiduciary and personal interests, is voidable by an affected beneficiary unless an exception applies. An independent written opinion of value shared with every beneficiary is the minimum protection; the attorney decides whether consents or a court order are also needed.
What happens to the sale proceeds?
They belong to the trust and are distributed according to its terms after the trustee pays the trust's obligations, including any amounts the personal representative certifies are needed for the settlor's estate under section 736.05053. Beneficiaries expecting a check at closing need to hear early that the money moves to the trust account first, and that the trustee is entitled to reasonable time to settle claims before distributing.
Sources and legal references
This page summarizes Florida law and court procedure for property owners. The primary sources are below; for your own estate, rely on a Florida-licensed probate attorney.
- Chapter 732, Florida Statutes: Probate Code; Intestate Succession and Wills — Florida Legislature (Online Sunshine)
- Chapter 733, Florida Statutes: Probate Code; Administration of Estates — Florida Legislature (Online Sunshine)
- Section 733.613, Florida Statutes: Personal representative's right to sell real property — Florida Legislature (Online Sunshine)
- Section 735.201, Florida Statutes: Summary administration; nature of proceedings — Florida Legislature (Online Sunshine)
- Section 732.401, Florida Statutes: Descent of homestead — Florida Legislature (Online Sunshine)
- Section 733.702, Florida Statutes: Limitations on presentation of claims — Florida Legislature (Online Sunshine)
- Florida Probate Rules (Florida Rules of Court Procedure) — The Florida Bar
- 26 U.S. Code Section 1014: Basis of property acquired from a decedent — Legal Information Institute, Cornell Law School
- Publication 559, Survivors, Executors, and Administrators — Internal Revenue Service
- Property tax exemptions, including homestead — Florida Department of Revenue
Families we have helped through an estate sale
PBP Real Estate holds 86 Google reviews at an average of 5.0 out of 5. Every quote below is a verbatim excerpt from a public review on that profile, shortened only where marked.
Gia and John from PBP Real Estate exceeded expectations in selling my mother's Delray Beach condo, which had previously failed to sell with another firm. Despite being in New York, I experienced excellent communication and responsiveness via phone, text, and email, making the remote process, including the closing, stress-free.
★★★★★ Robert S. · Google review, December 2024
I needed to sell my mothers home from out of state and Gia made the whole process very easy. She helped me getting the right people to get the house emptied and cleaned.
★★★★★ Roger D. · Google review, December 2024
We live in Ohio and had to sell a home in South Florida that needed a lot of work. She is extremely knowledgable and very helpful when it came to what should be done and what could be left alone to get us the most profit. Gia has a large network of reliable contractors.
★★★★★ A Google reviewer · Google review, April 2020
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