THIS INFORMATION WAS PROVIDED BY DON ROSS WITH ROSS TITLE & ESCROW.
If both spouses are on the deed, and they took title as husband and wife, only the surviving spouse needs to sign the Listing Agreement and Sales Contract. When you take title as husband and wife, Florida law treats their ownership as an estate by the entirety.
The surviving spouse owns it all. Generally, an affidavit and an original death certificate will clear up the title. The affidavit will state that the spouses owned the property continuously from its acquisition to the death of the spouse. If the deceased spouse was a non-resident of the United States, there may be an estate tax due.
If both spouses are deceased, the answer on who signs the Listing Agreement and Sales Contract depends on whether the property was their Homestead. With Homestead, all the heirs must sign. Usually, the heirs are all the children.
If the property is Homestead, the Personal Representative of the estate in Florida should also sign. It is not enough to have probate in another state. There must be another probate in Florida to clear title to the Florida real property.
If the heirs have not yet filed for probate in Florida, it’s usually safe to have the heirs and the executor, in the non-Florida state, sign the Listing Agreement. Once the Florida probate is opened, there are multiple ways to authorize any future sale.
The proper language on the contract when both spouses are dead is the “Estate of (last spouse to die), signed by the Personal Representative or Executor, and all the Heirs (usually the children).
This is a very complex area. If in doubt, get as many interested parties to sign the contracts as possible and consult with a real estate attorney for any questions.
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