One of the most time-pressured situations in Florida real estate is when a homeowner dies without a will and the mortgage falls behind. Suddenly, heirs who may not even know each other are named in a foreclosure lawsuit, probate has not been opened, and the foreclosure clock is ticking. Understanding how Florida intestate law, the probate process, and foreclosure timelines interact is essential to protecting whatever equity may exist in the property.
For general context on what foreclosure looks like in Florida, see our overview of the options to stop foreclosure in Florida. For situations where a will exists but the property is still in foreclosure, see our guide on probate and foreclosure in Florida.
Florida Intestate Succession: Who Inherits When There Is No Will?
When a Florida resident dies without a valid will, Florida Statutes 732.101 through 732.111 determine who inherits the decedent's property. The general order of priority is:
- Surviving spouse with no lineal descendants: The surviving spouse inherits the entire estate.
- Surviving spouse with lineal descendants (children, grandchildren) who are also the decedent's descendants: The surviving spouse inherits the entire estate.
- Surviving spouse with lineal descendants who are not all the spouse's descendants (blended family): The surviving spouse takes one-half and the lineal descendants share the other half.
- No surviving spouse: Lineal descendants inherit the entire estate in equal shares per stirpes.
- No surviving spouse or lineal descendants: Parents, then siblings and their descendants, then more remote relatives.
This statutory distribution applies to probate assets. Property held in joint tenancy with right of survivorship, payable-on-death accounts, or in a trust passes outside of probate under its own terms.
Why Probate Is Required Even Without a Will
Florida heirs do not automatically receive clear, marketable title to inherited property just because a family member died intestate and they are the legal heirs. The estate must go through the probate process for the property to be formally transferred to the heirs with clear title.
Without a court order from the probate process, title companies cannot insure a sale, and heirs cannot formally convey the property to a buyer or lender. This is a significant problem when the property is also in foreclosure, because the heirs need to be able to act quickly but cannot sell or refinance without the probate process being completed (or at least initiated).
An heir who inherits a home and wants to sell it before foreclosure must open probate, get appointed as personal representative, and then have the authority to sell the property on behalf of the estate. See our guide on heir property foreclosure in Florida for more on the specific challenges heirs face.
Florida Probate: Formal vs. Summary Administration
Florida has two primary probate processes. The right one depends on the estate's value and timing.
Formal Administration
Formal administration is the standard Florida probate process. It is required when the estate has more than $75,000 in non-exempt assets (not counting homestead or exempt personal property) and the death occurred within the past two years. Key steps include:
- Filing a petition in the probate court in the county where the decedent lived.
- Appointment of a personal representative by the court.
- Publication of a notice to creditors (opens a 90-day claim period).
- Inventorying and appraising estate assets.
- Paying valid creditor claims.
- Distributing remaining assets to heirs.
This process typically takes six months to more than a year. With a foreclosure running simultaneously, the personal representative must respond to the foreclosure lawsuit during this period or risk a default judgment being entered against the estate.
Summary Administration
Summary administration is a faster, simpler process available when the estate qualifies: either the total value of the estate subject to administration (not counting exempt assets) does not exceed $75,000, or the death occurred more than two years before the petition is filed. Summary administration does not require a personal representative and can be completed in a matter of weeks in some cases.
For heirs facing an active foreclosure, summary administration may be the faster path to establishing legal authority to sell the property -- but only if the estate qualifies.
Foreclosure Moves Forward During Probate
A mortgage lender does not have to wait for probate to conclude before pursuing foreclosure. If the mortgage was already in default before the homeowner died, or if payments stop because no one is managing the estate, the lender can file a foreclosure action against the estate within a short time after default.
The lender names the estate as a defendant in the foreclosure lawsuit. Once a personal representative is appointed in probate, that personal representative becomes the party who must respond to the foreclosure. If no personal representative has been appointed, the court may appoint one specifically to respond to the foreclosure, or the lender may seek appointment of a curator to accept service.
The bottom line: heirs who learn that a deceased family member owned a home with an outstanding mortgage must act quickly. Do not wait until probate is convenient -- the foreclosure will not wait. See our general overview of the Florida foreclosure process after a homeowner's death and our guide on inherited property facing foreclosure in Florida.
Options for Heirs When the Inherited Property Faces Foreclosure
Heirs have several potential options when they learn that property they are inheriting through an intestate estate is facing foreclosure. The right option depends on the equity in the property, the heirs' financial situation, and how quickly the probate process can move.
Make Mortgage Payments From Estate Funds
If the estate has funds -- bank accounts, other assets -- the personal representative can use estate funds to bring the mortgage current and continue making payments while the probate process plays out. This buys time for the heirs to decide what to do with the property.
Assume the Mortgage (Garn-St. Germain Act)
Under the Garn-St. Germain Depository Institutions Act, a lender cannot enforce a due-on-sale clause when property is transferred to a relative of the deceased borrower upon the borrower's death. A qualifying heir who inherits the property and intends to live there can assume the existing mortgage. The heir must contact the servicer, document the inheritance, and apply for a formal assumption -- the lender cannot simply refuse because of the transfer, but the heir must make payments to avoid default.
Sell the Property Before the Foreclosure Completes
If the property has equity, a pre-foreclosure sale is often the best option for heirs. The estate sells the property, the mortgage is paid off from proceeds, and the remaining equity is distributed to the heirs through probate. This requires the personal representative to have authority to sell the property, which means probate must be opened first. The faster probate is initiated, the more time the heirs have to market the property before the foreclosure auction.
If the property has no equity or negative equity, a short sale (where the lender accepts less than the full payoff) may be possible. See our guide on how to sell a house fast before foreclosure for the practical steps involved.
Let the Foreclosure Complete
If the property has no equity and the heirs do not want to assume the mortgage or invest in the property, they may choose not to contest the foreclosure. In that case, the lender proceeds to sale, and the heirs receive nothing from the property (or they may be entitled to any surplus if the sale price exceeds the debt). Because the estate signed the promissory note (not the heirs personally), the heirs do not inherit the personal mortgage debt -- they only lose the asset. Deficiency liability, if any, follows the estate of the deceased borrower, not the individual heirs personally.
Homestead Property and Intestate Complications
Florida homestead property carries unique constitutional protections that complicate the intestate foreclosure situation. Under Article X, Section 4 of the Florida Constitution, when a married homeowner dies intestate leaving a spouse and lineal descendants, the spouse takes a life estate and the lineal descendants take remainder interests in the homestead. This divided ownership can make it very difficult to sell or otherwise deal with the property without the agreement of all interest holders.
If heirs cannot agree on a course of action -- for example, one heir wants to sell and another wants to assume the mortgage -- a partition action in Florida court may be needed to resolve the dispute. This adds further delay and cost, which is why the foreclosure timeline creates enormous pressure.
For more on how homestead protections affect the foreclosure outcome, see our guide on the Florida homestead exemption and foreclosure.
Surplus Funds in an Intestate Estate
If the foreclosure sale generates a surplus -- more proceeds than needed to pay off the mortgage and senior liens -- those funds belong to the estate. In an intestate estate, surplus funds are distributed to heirs in accordance with Florida's intestate succession statutes. The personal representative must file a claim for the surplus in the foreclosure case and then distribute the funds through the probate process.
For guidance on how to claim surplus funds in Florida, see our comprehensive guide on Florida foreclosure surplus funds and our related guide on Florida foreclosure surplus funds for homeowners.
Barrett Henry on Inherited Florida Properties in Foreclosure
Barrett Henry is a Broker Associate at REMAX Collective with 23+ years of real estate experience helping Florida families navigate difficult property situations, including inherited homes facing foreclosure. When a family discovers after a loved one's death that the home they expected to inherit is in foreclosure -- and that no will exists to streamline the process -- the situation can feel overwhelming.
Barrett has worked with heirs, estate attorneys, and probate courts throughout Tampa Bay on exactly these situations. The key is speed: opening probate quickly, engaging a personal representative, and evaluating the property's equity position before the foreclosure sale date. In many cases, a pre-foreclosure sale can be completed in time to preserve equity that would otherwise be lost at auction.
Barrett helps homeowners and heirs throughout Tampa Bay and all 67 Florida counties (via referral) evaluate their options when an inherited property is in foreclosure.
Inherited a Florida property in foreclosure and have questions? Contact us today for a free consultation -- no cost, no obligation.
