Can you sell a house before probate?

estate values
Can you sell a house before probate?

Typically, it is not possible to sell a house before probate is granted because the executor of the will lacks the legal authority to do so until probate is obtained. However, there are exceptions to this rule. If the deceased person owned the property jointly with someone else, the co-owner may have the ability to sell the property without probate. Similarly, if the property is held in a trust, the trustee may have the authority to sell the property without the need for probate.

Understanding Probate

To understand why you cannot sell a house before probate is granted, it’s important to grasp the concept of probate and its process. When an individual passes away, their assets are typically frozen until the legal process of probate is finalised. This involves identifying and valuing the deceased person’s assets, settling any outstanding debts, and addressing any inheritance tax obligations before distributing the remaining assets to the beneficiaries.

Probate can be a lengthy process, often taking several months to complete. During this period, the property cannot be sold because the executors or administrators of the estate do not possess the legal authority to sell the house until probate is officially granted.

Selling Probate Property when owned as Joint Tenants

If the property of the deceased was owned by another person as joint tenants, then the property can indeed be sold without waiting for probate to be granted. When a property is owned by joint tenants, each tenant holds an equal interest in the property. If one of the joint tenants passes away, their share of the property automatically transfers to the surviving joint tenant(s) through the rules of survivorship, which operate independently of the probate process. As a result, the surviving joint tenant(s) would have the legal authority to sell the property without the need to wait for probate to be granted.

Selling a Probate Property Held in Trust

When a property is held in trust, it signifies that the property is owned by a trust entity rather than an individual. In such instances, the trustees of the trust hold the legal authority to sell the property, even before probate is granted. However, it is essential to seek guidance from a legal professional to ensure that all requisite steps are followed and to adhere to the specific terms outlined in the trust agreement and legal requirements.

Furthermore, it is crucial to take into account any potential tax implications associated with the sale of trust property and to seek advice from a qualified tax professional for comprehensive guidance. Consulting with legal and tax experts will help navigate the process effectively and ensure compliance with applicable laws and regulations.

Marketing a Probate Property for Sale

It is permissible to market a probate property for sale before probate is officially granted. By listing the property on the market and securing potential buyers, this approach may accelerate the sale process and shorten the overall timeline for completing probate. Although you may not yet have the legal authority to finalise the sale before probate is granted, marketing the property can generate interest and attract potential buyers.

It’s crucial to include disclosures in your marketing materials stating that the property is subject to probate and that the sale is contingent upon the grant of probate. This transparency helps prospective buyers understand the situation and avoids misunderstandings. Once probate is granted, you can proceed with finalising the sale process.

Probate properties often appeal to buyers due to the absence of a property chain, but delays in the probate process can pose challenges. Therefore, it’s important to manage expectations and communicate openly with interested parties throughout the probate and sales process.

Preparing a Probate Property for Sale

When selling a house before probate in England and Wales, there are several steps you can take to facilitate a quicker sale once probate is granted.

Check if the Property is Registered

To determine if a probate property is registered in England and Wales, you can use the Land Registry website. The Land Registry maintains records of all registered properties in these regions. By conducting a search using the property address or the owner’s name, you can ascertain whether the property is registered and access essential details about it.

If the property is not registered, it is highly recommended to seek advice from a probate or property practitioner promptly. Selling an unregistered property can lead to significant delays in the sale process. Potential issues associated with selling an unregistered property may limit the pool of potential buyers, and interested parties may leverage the property’s registration status to negotiate a lower price.

Registering the property before initiating the sale process is advisable, and this process can commence while the probate application is being processed. However, in certain situations involving complications, the registration process may span several months or even years.

Ensure the Property is Well Maintained

While the probate application is in progress, it’s essential to maintain probate property well and make it as appealing as possible to potential buyers. Consider the following steps:

  • Regular Inspections: Schedule regular inspections to ensure proper maintenance of the property and identify any issues that need attention.
  • Regular Maintenance: As the executor of the estate, take responsibility for property maintenance or hire a property management company to handle it on your behalf.
  • Communicate with Beneficiaries: Keep beneficiaries informed about the property’s condition and any maintenance activities to prevent misunderstandings or disputes.
  • Keep Records: Maintain clear records of all maintenance and repairs done on the property. The estate should cover these costs, and the executor or administrator can claim expenses back once the property is sold.
  • Consider Refurbishment: If the property is in disrepair, consider refurbishing it to increase its value before sale. Some companies specialise in funding and managing refurbishments if executors are unable to do so.
  • Probate House Insurance: Protect the property with probate house insurance to mitigate risks like damage, theft, or liability issues while the probate process is ongoing. Standard house insurance policies often lapse upon the owner’s death, so it’s crucial to secure appropriate coverage tailored for probate properties.

When selecting insurance, ensure it adequately covers unoccupied properties during probate. Specialist probate house insurance is recommended to address the unique circumstances of properties undergoing probate.

FAQs About Selling a Probate Property

When selling a probate property in England and Wales, there are common questions that often arise. Here are answers to some of these questions:

Can people live on a probate property before it is sold?

People can live in a probate property before it is sold, but the living arrangements can vary based on circumstances and beneficiary preferences. The executor or administrator of the estate may choose to live on the property temporarily to ensure maintenance and security. Alternatively, the property could be rented out to tenants to generate income while preparing for sale. It’s advisable to seek legal advice on these options to understand the practical and financial implications for both executors and beneficiaries.

Can you empty a probate property before probate is granted?

The executor or administrator of the estate may remove belongings from the property before probate if they deem it necessary for estate management. However, consulting a legal professional is crucial to ensuring all necessary steps are taken and understanding the legal implications. It’s also important to consider beneficiaries’ wishes and any instructions in the will. If you decide to empty the property, consider using a professional probate house clearance company that can clean, clear, and document all items removed. Some companies also provide property valuation and sale services.

Avatar of DLS Solicitors by DLS Solicitors
8th May 2024
Avatar of DLS Solicitors
DLS Solicitors

Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

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