Can Someone Live in a Home That’s in Probate?

When a family member passes away, questions about the home often arise right away. Who pays the mortgage? Who may live in the property? Does Florida homestead law apply? The answers depend on state law, the type of property involved, and your legal relationship to the deceased.

Many families in Florida face these issues while navigating probate during an already difficult time. A Florida probate attorney can help clarify property rights, address occupancy concerns, and guide decisions that affect both the estate and where you live.

If you are dealing with questions about living in a home during probate, contact The Estate Plan today to speak with a Florida probate attorney who can review your situation and provide clear, practical guidance based on your specific circumstances.

Key Takeaways About Living in a Home During Florida Probate

• Florida’s Constitution provides special protections for homestead property that may allow a surviving spouse, and in some circumstances minor children, to continue residing in the property during estate administration, subject to the specific facts of the estate.
• The personal representative controls most estate property under Florida Statutes Section 733.607, but homestead real property receives special treatment under Florida law.
• Living in a probate property creates obligations for maintenance, insurance, and mortgage payments that occupants must address throughout the administration process.

Florida Homestead Property and the Right to Occupy

Florida law treats homestead property differently than other real estate in probate. The Florida Constitution provides special protections for a deceased person’s primary residence, extending these protections to surviving family members. 

In most cases, a surviving spouse’s homestead rights are determined by the Florida Constitution and are not controlled by the will, unless those rights were validly waived or the property does not qualify as homestead. 

If the deceased is survived by both a spouse and minor children, Florida law generally provides the spouse with a life estate in the homestead and the children with a vested remainder interest, unless the surviving spouse timely elects to take a one-half interest as a tenant in common instead.The children receive the remainder interest and take full ownership after the spouse passes away.

What Happens When There Is No Surviving Spouse

If no surviving spouse exists, homestead property may pass according to the will or Florida intestacy laws. Adult children or other beneficiaries who receive homestead property may acquire ownership interests, but rights of occupancy depend on the form of ownership, agreement among co-owners, or court orders resolving possession.

Once property is determined to be protected homestead, the personal representative generally does not administer it in the same manner as other estate assets, though limited authority may exist for purposes such as preserving the property or addressing estate obligations with court approval.

Non-Homestead Property During Probate Administration in Florida

Real estate that does not qualify as homestead falls under different rules. Investment properties, vacation homes, and rental properties become assets the personal representative must manage according to Florida Statutes Chapter 733.

Several factors influence whether someone may live in non-homestead probate property:

• The terms of the deceased person’s will regarding specific property
• Whether the personal representative grants permission for occupancy
• The estate’s need to sell the property to pay debts or expenses
• Agreements among beneficiaries about property use during administration

Living in non-homestead estate property without proper authorization may create complications for the estate and other beneficiaries. A probate attorney in Florida helps beneficiaries and personal representatives establish clear arrangements that protect everyone’s interests.

Responsibilities of Occupants During Florida Probate

Individuals living in property during probate may have financial and maintenance responsibilities depending on their legal interest in the property, any court orders, and agreements with the personal representative or co-owners. These obligations continue throughout the administration period.

Occupants typically handle these ongoing property matters:

• Mortgage payments to prevent foreclosure proceedings
• Property insurance premiums and policy updates
• Property tax payments when due
• Basic maintenance and upkeep to preserve property value

Failure to address these responsibilities may harm the estate and reduce the value available for beneficiaries. Open communication between occupants, the personal representative, and a Florida probate attorney helps prevent problems before they escalate.

Resolving Beneficiary Disputes About Property Occupancy

Disputes sometimes arise when multiple beneficiaries have interests in the same property. One sibling may want to live in the inherited family home while another wants to sell it and divide the proceeds. These situations require careful handling to protect family relationships and legal rights.

A Florida probate attorney helps families work through disagreements involving estate property. Options may include buyout arrangements where one beneficiary purchases the others’ interests, partition actions through the court, or negotiated timelines for property sales. Early legal guidance often prevents small disagreements from becoming expensive litigation that drains estate resources.

How a Florida Probate Attorney Helps With Property Questions

The Estate Plan serves families throughout Coral Gables, Miami, and South Florida who need clarity about property rights during probate. Our attorneys help surviving spouses understand their homestead protections and assist beneficiaries navigating occupancy questions with personal representatives.

We address the practical concerns that arise when someone dies owning real estate. Mortgage companies send notices demanding payment. Insurance policies need updating to reflect the change in circumstances. 

Property taxes come due regardless of the owner’s death. Our attorneys advise clients on how these issues are typically addressed and coordinate with personal representatives, lenders, insurers, and other professionals as appropriate.

Whether you need to remain in a family home during probate or you are serving as personal representative responsible for estate real estate, we provide guidance tailored to your specific circumstances.

FAQs for Florida Probate Attorney Services

Does a surviving spouse need permission to stay in the family home during probate?

No, a surviving spouse has constitutional rights to remain in Florida homestead property. These rights exist independently of the probate process and the will’s terms. The spouse may continue living in the home throughout administration.

May a beneficiary named in the will move into the property before probate closes?

This depends on the property type and personal representative approval. For non-homestead property, the personal representative controls access during administration and must grant permission before a beneficiary takes occupancy.

Who pays property taxes and the mortgage on a home in probate?

Property taxes and mortgage payments continue during estate administration and are generally the responsibility of the estate or the party in possession. For homestead property, a surviving spouse or heir with a possessory interest typically pays ongoing expenses, though the estate may temporarily do so if authorized. Beneficiaries who wish to keep non-homestead property may need to make payments during administration to avoid default.

How do estate creditor claims affect the right to live in the home during probate?

Estate creditors have a right to pursue the deceased person’s non-exempt assets to satisfy debts. While Florida homestead property has strong constitutional protections from most creditors, the personal representative must generally liquidate non-homestead property if the estate lacks sufficient liquid funds to pay valid creditor claims and administration expenses. Therefore, the personal representative will not grant permission for occupancy in non-homestead property if the estate needs to sell the asset to cover debts.

An experienced probate attorney evaluates the estate’s total debt and assets to determine the risk to the property.

What happens if the deceased person owned property in another state?

If the deceased person owned real estate in another state, the estate must generally open an ancillary probate proceeding in that state, in addition to the primary probate in Florida. The laws of the state where the property is located determine the rights of occupancy and the property’s distribution, not Florida law. The Florida personal representative coordinates with a probate attorney in the other state to administer the out-of-state property.

Talk to a Florida Probate Attorney About Your Property Rights

Your family home holds more than financial value. Understanding your rights during probate can help reduce uncertainty during a difficult time. The Estate Plan helps families throughout Miami-Dade County, Coral Gables, and South Florida understand their options and protect their interests in estate real property.

Contact The Estate Plan today to discuss your specific situation with a Florida probate attorney who provides clear guidance on property occupancy, homestead protections, and beneficiary rights during estate administration.