Can You Sell A House Before Probate?
Losing a family member can be a stressful and upsetting time, and this is sometimes compounded by complicated probate procedures. Understanding what you can and cannot do during this time is vitally important. Here, we explain whether you can sell a house before probate and what you should consider when executing the estate of a deceased person.
Many people wish to sell their loved one’s house relatively quickly after a death, with the home acting as a sad reminder of their recent loss. The to-do list for executors can seem daunting, so getting ahead of the curve and finding a buyer for the deceased's property as soon as possible may seem beneficial.
However, the probate process is one of the most complicated areas of law and a wrong move - including an early property sale - could create devasting consequences for the executor and beneficiaries of the will. It is important that executors understand exactly what they can and cannot do in relation to the property before they are granted probate.
Below, we explain what a Grant of Probate is, outline when and why it is required, and discuss whether a property can be sold before probate is granted. We also explain how Percy Hughes & Roberts can help with any potential probate query you may have, or with conveyancing services when the property sale moves ahead. If you have any questions we have not answered, our expert probate solicitors are happy to speak to you regarding your probate query and provide the legal services you need. You can contact us by completing the enquiry form below or by calling 0151 666 9090.
What Is a Grant of Probate?
Probate is the legal process for dealing with the estate of someone who has died. An estate means all of the deceased's assets, including any money or property they owned, minus any debts or money they owed. During the probate process, an executor organises the deceased’s money, assets and possessions and distributes them to beneficiaries as inheritance.
If the deceased left a will, they should have specified an executor or executors, and detailed how their estate should be distributed. An executor must then carry out the deceased’s wishes.
Before an executor begins the probate process, they must apply for a Grant of Probate. This is a legal document that gives them the authority to manage and distribute the deceased’s estate.
If there is no executor named in the will, or there is no will, someone must become the administrator of the estate. Administrators obtain a Grant of Letters of Administration, which is distinct from a Grant of Probate, and the probate process unfolds differently under these circumstances.
When Is Probate Required?
Probate is required in the majority of cases after a person dies, but there are some exceptions depending on the size of the estate in question. Probate will usually be required if:
The deceased owned property
The deceased owned stocks or shares in their sole name
The deceased had money in their sole name
Any part of the estate administration is disputed and there are legal proceedings
Normally, if the deceased had an estate worth over £15,000, it is likely probate will be needed. This threshold varies from bank to bank, however; in some cases, probate will not be necessary for estates worth up to £50,000.
If you are still unsure, our expert probate solicitors can help you to determine whether probate is required in your particular case.
How Do You Value an Estate?
Before you are able to apply for a Grant of Probate, you need to estimate the value of the deceased's estate, including their property. This allows the probate registry to specify the value of the estate on the Grant of Probate, and is also necessary to help HMRC determine whether or not you will need to pay Inheritance Tax on the estate.
Executors should begin by tallying up everything the deceased owned at the date of the death, and any debts - including a mortgage, outstanding bills or other money that they owe. This includes:
Stocks & Shares
Valuables (such as jewellery, art)
Debt (including credit cards, mortgages, equity release)
Executors will need to get the property valued in order to give an accurate estimate of the overall worth of the estate. They can do this in a number of ways:
Value the property themselves using Zoopla, RightMove or another service to see how much similar properties in the area are worth
Get a valuation from a local estate agent
Get a valuation from an RICS property surveyor
Once executors understand how much the estate is worth, they need to include the calculation in their application for probate. It is also worth noting that any gifts that the deceased gave within a 7-year period before they died may be subject to Inheritance Tax, which could affect the value of the estate. This is referred to as the 7-year rule in inheritance tax.
Can You Sell a House Before Probate?
The short answer to this question is no, you cannot officially sell the house of the deceased before you have obtained a Grant of Probate. Executors can only prove the rights they are granted when they are named in a person's will by acquiring a Grant of Probate first.
However, there are steps that executors can take to ensure that, once they have obtained the grant, the sale of the property runs smoothly.
1. Check HM Land Registry
Executors should first check if the title to the deceased’s home is registered on HM Land Registry. While registration is now compulsory on nearly all land transactions in England and Wales, this requirement did not come into force until 1st December 1990 in many areas, meaning that some properties may not be registered.
2.1 If The Title Is Registered
If the title is registered, copies of the title entries, plan and documents referred to in the title should be obtained. These documents can be used to confirm:
That the property is in the deceased’s sole name
That the deceased’s name is shown correctly
That the title plan covers the entire extent of the property
Whether there is any mortgage or charge on the property
2.2 If The Title Isn’t Registered
If the title is not registered, it is necessary to locate the physical deeds to the property. These may be located in the deceased’s home, or held by their solicitor or bank. If there was still a mortgage on the property, the lender will usually also hold the deeds.
Unregistered title deeds should be checked by a conveyancing solicitor for the same reasons mentioned above.
4. Putting The House On The Market
If the title has been checked and everything is in order, executors can take steps towards putting the property on the market. This may involve choosing the appropriate estate agent, agreeing a price, and signing the agent’s terms of business.
Depending on how complicated the estate is, executors should usually expect a Grant of Probate to be issued within a few months. This means that they could instruct an agent to market the property before the grant has been issued, knowing that it will probably arrive before the sale is complete. However, bear in mind that if the estate is complicated and the Grant of Probate is delayed for any reason, the sellers will not have the authority to exchange contracts until they are granted probate.
If there is any delay in obtaining the grant, this could cause the buyer to pull out of the sale. In all cases, the estate agent and any potential buyers must be made aware that the sale is subject to probate.
Potential Issues With Selling a Home Before Probate
Getting on the front foot with the sale of the property may seem like the right thing to do, but it can cause problems further down the line. There are a few disadvantages to trying to progress the sale of a property before probate has started.
Legal challenges to the estate can occur at any point during the probate process. Some beneficiaries may not be aware they are listed in a will until the probate process begins, and may then decide to issue a challenge. On the other hand, people who expected to be beneficiaries of the estate may find out they are not named in the will at all once probate begins, and could challenge the will on these grounds.
Contested probate can complicate the sale of a property. This could cause estate agents and buyers to become frustrated.
In addition to this, executors are responsible for ensuring the upkeep of any property within an estate until probate is completed. This means that, if a price has already been agreed upon by the buyer, the executor will have to pay for any maintenance, repairs, or cleaning expenses in order to keep the property in the same state as it was when the price was set. If the property falls into disrepair during the probate process, the buyer may either ask for a reduction in price or simply pull out of the house sale altogether.
As always, we recommend that you speak to an expert probate solicitor before thinking about putting a property on the market before a Grant of Probate is obtained.
If The Property Was Jointly Owned
The deceased may not have been the sole owner of their home. If they held the property as a joint tenant with someone else, the legal title to the property automatically passes to the surviving co-owner upon their death. The surviving owner will be able to sell the property without waiting for a Grant of Probate to be issued.
The deceased’s death certificate will be required in order to exchange contracts and transfer ownership. Obtaining a death certificate is usually one of the first duties of an executor, so in these cases you can put the property on the market sooner.
How can Percy Hughes & Roberts help?
At Percy Hughes & Roberts Solicitors, our team of dedicated wills and probate solicitors is ready to help you resolve your query or issue relating to this area of the law as quickly and effectively as possible.
Dealing with a loved one’s estate can be complex, and it is vitally important that the correct procedures are followed in order to avoid any potential legal pitfalls. This includes managing a property sale before a Grant of Probate has been acquired or advising on other duties related to executing a will. Our probate solicitors have a wealth of experience in helping executors apply for probate and can deal with any potential legal issues along the way.
Contact Percy Hughes & Roberts
To speak to an employment law solicitor for advice, contact Percy Hughes & Roberts for a no-obligation phone consultation today. We provide ourselves on offering expert advice that's easy to understand, and we will be with you through every step of the legal process.
Call us on 0151 666 9090, or fill out an online enquiry form to arrange for us to get in touch at a time that's suitable for you.