The Short Answer

In Florida probate real estate sales, there is no single statewide “due diligence fee” rule like some other states use; instead, deposits (often called earnest money) are handled based on the purchase contract and the personal representative’s fiduciary duties. If court authorization/confirmation is required for the sale, the deal structure—including how deposits are held and when they may be refunded—must fit within what the court approves.

What Florida Law Says

Florida probate focuses less on labeling a payment as “due diligence” versus “earnest money,” and more on whether the personal representative has authority to sell, whether court approval is required, and whether the personal representative is acting in the estate’s best interests as a fiduciary. In practice, deposits are typically treated as estate-related funds that must be handled carefully (often through escrow/trust arrangements in the transaction) and applied or returned according to the contract terms and any required probate court order.

The Statute

The primary law governing probate sales of real estate is Fla. Stat. § 733.613.

This statute establishes that when a personal representative lacks an effective power of sale, no title passes until the court authorizes or confirms the sale, while a will that grants a power of sale can allow a sale without court authorization or confirmation.

Why You Should Speak with an Attorney

Even when everyone agrees on the sale price, deposit handling can become a flashpoint in probate because the personal representative must protect the estate and follow the correct authority path (court-approved sale vs. power-of-sale transaction). Legal outcomes often depend on:

• Strict Court-Approval Requirements: If the estate does not have a usable power of sale, the transaction may require court authorization/confirmation before title can pass, which can affect when deposits are accepted, released, or treated as nonrefundable. See Fla. Stat. § 733.613.
• Fiduciary Risk for the Personal Representative: The personal representative is a fiduciary and must act in the best interests of the estate and interested persons, which can limit “creative” deposit terms and increase scrutiny of any nonrefundable fee. See Fla. Stat. § 733.602.
• Disputes and Liability Exposure: If a deposit is mishandled (wrong payee, wrong account, premature release, or unfair forfeiture), beneficiaries or other interested persons may challenge the transaction and seek remedies based on breach of fiduciary duty theories. See Fla. Stat. § 733.609.

Because deposit terms are usually set by contract and then filtered through probate authority rules, a small drafting mistake can create a major dispute—especially if the sale needs court confirmation or if heirs disagree about the deal.

If you want more background on when court approval is required (which often drives how deposits are treated), see: Can a Florida Executor (Personal Representative) Sell Estate Real Estate Without Court Approval? and Do I Need to Petition the Court to Sell a Decedent’s Home During Probate in Florida?.

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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.