When someone passes away owning a property, deciding what to do with their home is often one of the biggest parts of administering their estate. If the property is empty, the executors or family may want to put it on the market quickly rather than waiting for the entire probate process to finish.
In many cases, a property can be prepared for sale and a buyer found while the probate application is progressing. However, the personal representatives will normally need the appropriate grant before they can complete the sale and transfer legal ownership to the buyer. Government guidance confirms that a property can be marketed while waiting for probate, although the timing needs to be managed carefully.
AFG Law’s Private Client team provides probate services to executors and administrators, including advice on dealing with property and other assets within an estate. Our Residential Property team can assist you throughout the conveyancing process.
What is probate?
Probate is the legal authority associated with administering the estate of someone who has died. More precisely, where there is a valid Will and named executors, a grant of probate provides formal evidence of the executors’ authority to deal with the deceased’s assets.
Where somebody dies without a Will, the person entitled to administer the estate will usually need to apply for letters of administration instead. Different arrangements can also apply where there is a Will but no executor who can act.
The personal representatives are responsible for dealing with the deceased’s estate, including their money, property and possessions. This can involve identifying and valuing assets, dealing with debts and tax, selling assets where necessary and ensuring the estate is eventually distributed to the beneficiaries correctly.
Can you put a house on the market before probate is granted?
There is an important distinction between marketing a property and legally completing its sale. In practice, the executors can take preparatory steps while waiting for the grant. Government home-selling guidance from the Gov.uk website specifically states that a property can be marketed while waiting for probate to be granted.
This means it can be possible to instruct estate agents, obtain valuations, advertise the property, conduct viewings and accept an offer before the grant has been issued.
This can be useful because probate can take several months in some estates, particularly where the administration is more complicated. Starting the marketing process earlier can reduce the amount of time the property remains empty and allow the conveyancing work to begin while the probate application progresses.
However, anyone selling a house before probate should make the estate agent, buyer and conveyancers aware of the position so expectations about timing can be managed.
Can you exchange contracts before probate?
This is where greater caution is needed. Accepting an offer is not legally binding in England and Wales. Ordinarily, a property transaction only becomes legally binding when the parties exchange contracts.
The personal representatives’ ability to exchange before the grant can depend on the circumstances, including whether they are executors appointed by a Will or administrators whose authority arises through a grant.
Because exchange creates a binding obligation to sell, executors should take legal advice before committing the estate to a completion date if the necessary grant has not yet been obtained.
A safer approach in many probate sales is to progress the transaction while waiting for the grant and ensure the conveyancing timetable takes account of when the personal representatives will have the authority required to complete.
Can you complete a property sale without probate?
Where the deceased was the sole registered owner and a grant is required, the personal representatives will normally need it before they can transfer the property to the buyer.
This is why someone may be able to market a property before probate but still have to wait until probate is granted to complete.
Once the necessary grant has been issued, it provides the evidence required for the personal representatives to deal with the property and other relevant assets.
There can be exceptional situations where an urgent property transaction requires a limited grant. For example, HMRC guidance recognises circumstances where a buyer has been found but waiting for a full grant could jeopardise the sale. These cases require specialist advice and are not the normal route for an ordinary probate sale.
What happens if there is no Will?
If the deceased did not leave a valid Will, there will be no executor appointed by them. Instead, an eligible person will usually need to apply for letters of administration. Once granted, that person becomes the administrator and has authority to administer the estate.
This distinction can be particularly important when considering whether to sell a property before the grant because an administrator’s authority does not arise in precisely the same way as that of an executor appointed under a Will. Legal advice should therefore be obtained before making commitments to a buyer.
Who decides whether the property should be sold?
The personal representatives are responsible for administering the estate rather than simply following instructions from individual beneficiaries. They must carry out their duties properly and act in the best interests of the estate and those entitled to it.
Whether a property should be sold will depend on matters such as the Will, the estate’s debts and liabilities, the interests of the beneficiaries and whether the property needs to be converted into cash to administer the estate.
Where several beneficiaries have an interest in the estate, disagreements can sometimes arise about whether to retain or sell the house. Executors should take advice where there is disagreement rather than allowing one beneficiary to dictate how the estate is administered.
Do you need to value the house before selling it?
Yes. Establishing an appropriate value is important both for the administration of the estate and for tax purposes. The value of the deceased’s assets is relevant when the personal representatives apply for probate and establish whether Inheritance Tax is payable. Government guidance also recommends obtaining valuations when dealing with a property following a death.
Executors should also be able to demonstrate that they have dealt with estate assets appropriately. Obtaining professional market valuations can help when deciding what asking price to set and whether an offer is reasonable.
If a property increases in value between the date of death and its eventual sale, there can also be Capital Gains Tax implications for the estate.
How long does selling a probate property take?
There is no standard timescale for selling a probate property. The property sale itself involves much of the same conveyancing work as any other transaction, such as title checks, enquiries, searches, negotiations, exchange and completion. The additional issue is ensuring that the necessary grant is available at the right point.
Starting the sale process before the grant arrives can therefore be helpful. A buyer may be found and conveyancing progressed while the probate application is being dealt with.
However, executors should avoid promising an unrealistic completion date. If the buyer needs to move quickly but the grant remains outstanding, this can place the transaction at risk.
Good communication between the personal representatives, solicitor, buyer and estate agents is particularly important.
How can AFG Law help with selling a property through probate?
Selling a property is often only one part of administering an estate. Personal representatives may also need to value other assets, deal with Inheritance Tax, settle liabilities, close accounts and ultimately distribute the remaining estate to the beneficiaries.
AFG Law’s Private Client team can advise you throughout the probate process, from establishing whether a grant is required and preparing the application through to dealing with estate assets and distribution.
Where the estate contains a property, we can also help ensure that the probate and conveyancing processes are coordinated so the sale can progress without avoidable delays.
Our Residential property team would be more than happy to assist you through the process of selling an inherited property.
If you are an executor or administrator and are considering selling a house before probate has been granted, contact AFG Law for advice on the steps you can take now and what will need to happen before the sale can complete.