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Selling a House During Probate

Our People - Andrew Guile
27 March, 2023

If you’re dealing with an estate in England & Wales which includes a house, flat or land which is to be sold or transferred, you are likely to need a grant of representation (probate, or letters of administration) to complete the transfer or sale. A grant may not be necessary if the property was owned jointly by the deceased and another .

In this article, we’ll provide an overview of what you need to know about selling a property as part of estate administration.

Understanding Probate

Probate is the legal process of administering the estate of a deceased person. When someone dies, their assets, including property, must be valued, any tax due on the estate paid, debts paid and then the assets can be distributed to their beneficiaries. Distributing the estate is carried out in accordance with the deceased’s wishes as set out in their will or, if there is no will, in accordance with the rules of intestacy.

The person or people administering the estate are known by the collective term of personal representatives (PRs). If there is a will, they will be identified as the executors.

If the deceased owned a house, flat, or land it will be included in their estate. Property held as ‘joint tenants’ will automatically pass to the surviving joint tenant and won’t pass via the will of the deceased. However, property held in a sole name or held as ‘tenants in common’ (i.e. where property is held by two people with defined shares, (e.g. 50% each) then their share will pass under their will. A grant may not be necessary for a transfer or sale by a surviving tenant in common, it will be required if the deceased was the sole owner of the property. 

It’s important to note that the probate process can take several months (and sometimes years) to complete, depending on the complexity of the estate and any disputes that may arise. 

Probate and Selling a House

It’s important to understand when you can market and when you can sell a house during the probate process.

If the PR(s) is an executor under a valid will, then that PR can rely on the authority granted by the will to market the property and even to exchange contracts for a sale of the property. However, they will need the grant of probate prior to completion. 

Exchanging contracts and setting a date for completion without having first obtained the grant of probate is extremely unwise as getting the grant can take months and there’s no guarantee as to when it will arrive. As a result, while the PR could exchange contracts, it’s advisable only to do so after receiving the grant of probate so you can be assured that you will have the authority to complete the sale in accordance with the contract.

In contrast, the authority of an administrator derives from the grant of letters of administration, so they ought to wait to receive their grant before marketing the property.  You may be able to market the property in the interim, but both agent and prospective buyers would need to know you have no grant, and the agent may not be willing to proceed on that basis. It is important to note that you cannot exchange contracts or complete the transaction until you have obtained the grant.

Can you sell a house before Probate?

In general, it’s not possible to sell a house before obtaining probate. This is because without a grant of probate, the PR does not have the legal authority to sell the property. Attempting to sell the property without probate can result in legal complications and potential liability for the PR.

It’s worth noting that there are some exceptions to this. For example, if the property was owned jointly with a surviving spouse or partner, they may be able to sell the property without probate. Additionally, if the deceased person had created a trust that holds the property, the trustee may be able to sell the property without probate.

The estate administration process is not quick, and can be complex.  It is important to factor this in when property is part of the estate, and is to be sold.  It’s recommended that you work with a qualified probate solicitor to ensure that you understand the legal requirements and obligations involved in the probate process, particularly when selling an estate house or flat is involved.

8 Key Stages to Selling a House When Dealing with Probate

  1. Value the estate
  2. Pay any inheritance tax due
  3. Obtain the grant of probate
  4. Prepare the property for sale
  5. List the property for sale
  6. Accept an offer
  7. Exchange contracts
  8. Complete the sale

1. Value the Estate

Before you can apply for probate, you must pay any inheritance tax due on the estate which means the first thing you need to do is ascertain what assets (property, investments, money in bank accounts, etc) the deceased had and their total value.

2. Pay any Inheritance Tax Due

There are complex rules about whether or not an estate has to pay inheritance tax and that detail is beyond the scope of this article. However, if no tax is due, you can (most likely) immediately apply for probate but you will need to confirm the gross, net and taxable value of the estate to do so. There are also circumstances where you need to file tax forms first even if no tax is payable. You may need legal advice on these issues.

If inheritance tax (IHT) is payable, a full IHT return is required. Once the forms have been filed with HMRC and any tax due is paid, you can then apply for probate 25 days later.

3. Obtain the Grant of Probate

Once the estate has been valued and any tax paid, the PR(s) can obtain a Grant of Probate. This confirms the PR(s) authority to administer the estate and sell any assets, including property.

4. Prepare the Property for Sale

The PR(s) must prepare the property for sale. It may be wise to consider making minor repairs and dealing with any major issues at the property that, if addressed, may improve its value (i.e. by more than the cost of the repairs) and decorating can increase its value too. It’s a good idea to discuss these issues with your estate agent if you have one.

It is also recommended to instruct a solicitor to act on the sale. The solicitor can check the title and advise on other steps that may need to be taken to expedite the legal process, once a buyer is found.  

5. List the Property for Sale

The PR(s) must work with a reputable estate agent to market the property for sale.

6. Accept an Offer

Once a suitable offer is received, the PR(s) may accept it on behalf of the estate.

7. Exchange Contracts

Once the buyer’s solicitor and the PR(s) or the PR(s)’s solicitor have agreed on the terms of the sale, they can exchange contracts. This is the point at which the sale becomes legally binding, and the buyer will be required to pay a deposit.

8. Complete the Sale

Once all legal requirements have been met, the PR(s) can complete the sale of the property. At this point, the remaining funds from the sale will be distributed to the beneficiaries.

As you can see, the probate process occurs before any steps in the selling process can be taken. The PR(s) must first obtain a Grant of Probate before they can begin marketing the property for sale. The selling process follows a similar path to a regular sale, with the exception that the PR(s) are the sellers. The timing of when each step occurs can vary depending on the complexity of the estate and the speed at which the PR(s) are able to complete the necessary tasks. 

Can you market a property before obtaining a grant of probate?

PR(s) can market a property for sale before obtaining a grant of representation. An administrator does not have legal authority to sell the property until the grant has been issued. An executor is in a better position, but must still have a grant in order to proceed to an exchange of contracts. 

If an executor decides to market a property for sale before obtaining the grant, the estate agents and potential buyers must be told that everything is subject to obtaining the grant. If for any reason the grant is not obtained or is delayed, the sale may not be able to proceed, and the buyers may have to back out.

In general, it’s recommended that the PR(s) wait until they have obtained the grant before marketing a property for sale. This minimises the risk of any complications or delays, given that the key steps of exchange and completion cannot take place before the issue of the grant. 

The estate administration process is not quick, and can be complex.  It is important to factor this in when property is part of the estate, and is to be sold.  It’s recommended that you work with a qualified probate solicitor to ensure that you understand the legal requirements and obligations involved in the probate process, particularly when  selling an estate house or flat is involved.

If you are a personal representative of an estate and need help with selling a house during probate, please contact one of our specialist Probate Solicitors on 020 8492 2290 or email wtp@gnlaw.co.uk.

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