Can I sell the deceased's home before receiving grant of probate?

house keysWhen administering an estate, the to-do list can be daunting. So can initiating the sale of the deceased’s property be started early? Karen Bacon explains what can and can’t be done.

The short answer is that the deceased’s home can’t be sold before a grant has been obtained. 

Although executors derive their authority from the will, they can only prove their rights by taking a grant of probate. If the deceased died without a will (intestate), the administrators have no authority before the grant of letters of administration is issued.

However, there are steps that can (and should) be taken at an early stage to ensure that when the grant has been obtained, the sale of the property proceeds smoothly.

Check HM Land Registry

The personal representatives (which includes executors and administrators) should check whether the title to the deceased’s home is registered at HM Land Registry. Although registration is now compulsory on virtually all land transactions in England and Wales, in many areas, it didn’t became compulsory to register a purchase until 1 December 1990 – and gifts and assents of property didn’t become compulsorily registrable until 1 April 1998. 

If the title is registered

If the title is registered, copies of the title entries, plan and documents referred to in the title entries should be obtained, to check:

  • 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 other charge (eg equity release) on the property

The personal representatives should contact the lender in relation to any charge securing money on the property, to obtain details of the amount required to repay the charge – both to ensure that there will be sufficient funds, and because this information is required in order to apply for the grant.

There may be restrictions in the proprietorship register indicating that the property is subject to a trust, or that a third party’s consent to sale, or a certificate of compliance with obligations in a document such as an option or overage agreement, is required. In this case, the personal representatives should take advice from their solicitor to ensure that the restrictions can be complied with.

If the property is leasehold, such as a flat or retirement property, there will be further restrictions and requirements in the lease, and these should also be checked.

Unregistered titles

If the title is unregistered, the physical title deeds will need to be located. These may be kept at the deceased’s home, or may be held by the deceased’s solicitor or bank. If the property was subject to a mortgage, the lender will normally hold the deeds. If the personal representatives have engaged a solicitor to deal with the estate administration, deeds can normally be released to the solicitor, but where personal representatives are dealing with the estate themselves, deeds will not usually be released until the grant has been obtained.

Unregistered title deeds should be checked by a conveyancing solicitor for the same reasons as with the registered title, to ensure that they are complete and that all of the necessary documents are present. The document transferring the property into the deceased’s name may contain references to earlier documents containing plans or more detailed descriptions of the property, and setting out rights and covenants which benefit the property and to which it is subject. 

Checking that the deeds are in order

If there are any documents missing, or if the deeds don’t cover all of the property, or contain all of the necessary rights, such as rights of way, it’s helpful to know that at an early stage, rather than when a buyer has been found!  

It’s quite common for the selling solicitor to find that the death of the deceased’s spouse or former co-owner has not been registered, and that a death certificate is required to perfect the title. This may take several weeks to obtain from the General Register Office if one can’t be found among the deceased’s effects by the personal representatives.

Having the title checked at the outset allows time for further investigation into any problems while the application for the grant is being dealt with.

Putting the property on the market

If the title has been checked and is in order, the personal representatives can take the preliminary steps ready to market the property, such as selecting an appropriate estate agent, agreeing sales particulars and signing the agent’s terms of business. 

If the estate is straightforward and the personal representatives expect that the grant will be issued within, say, a couple of months, they can instruct the agent to market the property. However, if a buyer is found, the sellers don’t have the authority to exchange contracts until the grant has been issued. If there is any delay in obtaining the grant, this will cause problems for the buyer, so if the sellers have any concern that there may be a challenge to the will, they shouldn’t arrange to market the property until the grant has been issued.

If the property was co-owned

If the deceased wasn’t the sole owner of their home, legal title to the property passes to the co-owner, who will be able to sell the property without needing to wait for a grant to be issued in the deceased’s estate. If the property was held as joint tenants, it will pass automatically to the surviving co-owner. In either case, the deceased’s death certificate will be required.

If the property was held as tenants in common, this will be evidenced by a restriction in the proprietorship register, stating that a disposition by a sole proprietor under which capital money arises can’t be registered unless authorised by the registrar or the court. In this case, the surviving co-owner will need to appoint a new ‘trustee’ to give a receipt for the deceased’s share of the sale proceeds of the property, which must then be paid to the personal representatives named in the grant in the deceased’s estate. 

The personal representatives should also seek a solicitor’s advice as to the implications of the property being held as tenants in common, as there is usually a reason for this, such as a trust in the deceased’s will – and wherever a trust arises, it is imperative that legal advice is taken.

Death of seller before exchange of contracts

In the unfortunate situation where a seller has died after exchanging contracts, but before completing the sale, it will be necessary to obtain a grant urgently in order to complete the sale and avoid the contract being rescinded. 

In these circumstances, it is possible to obtain a grant of administration ad colligenda bona, which is a grant limited to a specific purpose, such as sale of a property (but not distribution of the proceeds). The application must be supported by an affidavit providing evidence that the estate will suffer if the grant is not issued, and the extent of the powers requested. A full grant will still need to be applied for in the usual way.  

About the author

Karen Bacon is head of the wills, probate and tax team at Steeles Law solicitors.

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