Why is my inherited house not considered a probate asset, and can I make mortgage payments to avoid foreclosure without the administrator’s help? - Florida
The Short Answer
In Florida, an inherited house is often not treated as a probate “asset” when it qualifies as the decedent’s protected homestead, because it generally passes directly to the heirs/devisees rather than becoming property the personal representative controls. Yes, you can usually pay the mortgage to prevent foreclosure even without the administrator’s help—but you should be careful about reimbursement, ownership rights, and coordinating with the estate and other heirs.
What Florida Law Says
Florida probate works differently for homestead than for most other property. While many assets become “estate assets” managed by the personal representative, Florida law carves out protected homestead so it is generally not an asset in the hands of the personal representative for paying most estate expenses and distributing like ordinary probate property. That is why you may be told the home is “not a probate asset,” even though a probate case may still be needed to confirm who inherits it and to clear title.
The Statute
The primary law governing this issue is Fla. Stat. § 733.608.
This statute establishes that all property of the decedent is generally an asset in the hands of the personal representative—except protected homestead, which is treated differently and is not ordinarily controlled as a probate estate asset.
Homestead status and who inherits can also turn on Florida’s homestead descent/devise rules, including Fla. Stat. § 732.401 (descent of homestead) and Fla. Stat. § 732.4015 (restrictions on devising homestead when there is a surviving spouse and/or minor child).
On the mortgage question: a lender can still foreclose if payments are not made, even if probate is pending. Paying the mortgage is often a practical way to protect the property, but it does not automatically resolve questions like who should pay, whether you can be reimbursed, and whether the home is truly protected homestead versus an estate asset.
Related reading: Who has to pay the mortgage and utilities on an inherited home during probate in Florida? and What are a personal representative’s responsibilities during probate in Florida?.
Why You Should Speak with an Attorney
While the statutes provide the general rule, applying them to your situation is rarely simple. Legal outcomes often depend on:
- Strict deadlines: If a surviving spouse’s homestead interest involves an election, Florida law imposes a 6-month deadline after death for that election in many cases. See Fla. Stat. § 732.401(2)(b).
- Burden of proof: Whether the property is actually the decedent’s protected homestead can depend on facts (residency, family status, title, and whether it was validly devised). If homestead is disputed, the estate can end up in litigation.
- Exceptions and competing rights: Even when the home is protected homestead, the personal representative may have limited authority to take steps to preserve it in certain circumstances, and reimbursement/lien issues can arise if someone pays expenses. See Fla. Stat. § 733.608(2)-(3).
Trying to handle this alone can create problems like paying thousands toward a mortgage without a clear path to reimbursement, triggering family disputes, or making decisions that complicate title/closing if the home needs to be sold or refinanced.
Get Connected with a Florida Attorney
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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.