Boca Raton, FL asked in Real Estate Law, Estate Planning and Probate for Florida

Q: Can an executor and beneficiary of a will sell an asset (house) of the will and receive 3% commission on the sale?

Seems like a conflict of interest.

1 Lawyer Answer
Phillip William Gunthert
Phillip William Gunthert
  • Estate Planning Lawyer
  • Orlando, FL
  • Licensed in Florida

A: An Executor (called Personal Representative in Florida), is entitled to 3% of the estate value for their role, if they are a real estate agent and it is agreed that they get 3% in that role, that would likely be fine as well. The real issue is that the property may or may not be qualified as part of the estate, for instance, if the property is Homestead in Florida, it will not be deemed an estate asset in most circumstances and the Personal Representative will not be able to claim their fee on that asset. As far as an individual real estate agent, if they are working in that capacity for the sale of the home that may or may not be fine. I would advise that any beneficiary in a probate have their own probate attorney if there is any concern, worries or other issues that may arise or exist ongoing, any attorney for the estate is purely representing the interests of the estate and the Personal representative and not the interests of the other potential beneficiaries that may have or will have diverging and or conflicting interests. For example, PR collecting a 3% home sale commission separate from the 3% Personal Representative fee (could you get someone else to do it for less than 3%, would someone do it for 1-1.5% as these fees are all always negotiable, etc.), is/was the property homestead and should any fee be collected at all, should the house be sold at all, etc.

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