Can you sell a house before probate?

In most cases, it is not possible to sell a house before probate is granted. This is because the executor of the will does not have the legal authority to sell the property until they have been granted probate. However, there are some exceptions to this rule. If the deceased person owned the property jointly with someone else, the co-owner may be able to sell the property without probate. Additionally, if the property is held in a trust, the trustee may be able to sell the property without probate.

Understanding Probate and why you cannot sell a house before probate

To explain why you cannot sell a house before probate has been granted, it’s important to understand what probate is and how it works. When a person dies, their assets are frozen until the legal process of probate is completed. This process involves identifying and valuing the deceased person’s assets, paying any outstanding debts and any inheritance tax owed before distributing the remaining assets to the beneficiaries. This process can take several months to complete, and during this time, the property cannot be sold. Put simply, the Executors or Administrator of the estate do not have the legal authority to sell the house until Probate is granted.

Selling Probate Property when owned as Joint Tenants

If a property of the deceased was owned with another person as joint tenants, then the property can be sold. When a property is owned by joint tenants, each tenant has an equal interest in the property. If one of the joint tenants passes away, their share of the property will automatically transfer to the surviving joint tenant(s) via the rules of survivorship which is outside of the probate process. Therefore, the surviving joint tenant(s) would have the legal authority to sell the property without waiting for probate to be granted.

Selling a Probate Property Held in Trust

When a property is held in trust, it means that it is owned by a trust rather than an individual. In this case, the trust’s trustees have the legal authority to sell the property, even before probate is granted. However, it is important to consult with a legal professional to ensure that all necessary steps are taken and to comply with the specific trust agreement and legal requirements. Additionally, it is crucial to consider any potential tax implications and seek advice from a tax professional.

Marketing a Probate Property for Sale before probate is Granted

It is perfectly acceptable to market a probate property to sell before probate is granted. By placing the property on the market and securing a buyer it may speed up the sale process and shorten the overall time it takes to complete the probate process. While you may not have the legal authority to sell the property before probate is granted, you can still market it to generate interest and potential buyers. It’s important to disclose in your marketing materials that the property is subject to probate and that the sale is contingent upon the grant of probate. This helps potential buyers understand the situation and prevents any misunderstandings. Once probate is granted, you can proceed with the sale process. The absence of a chain often makes probate property appealing to potential buyers, however delays in the probate process can create problems.

Consulting with a probate professional to complete the probate process is highly recommended when there is a requirement for the process to be completed as quickly as possible. Probate professionals understand the process (mistakes cause delays) and have access to a government portal which can speed up the probate application process.

Preparing a Probate Property for Sale

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

Check if the Property is Registered

To check if a probate property is registered in England and Wales, you can use the Land Registry website. The Land Registry keeps a record of all registered properties in England and Wales. By searching the property address or the owner’s name, you can find out if the property is registered and obtain important details about it. If the property is not registered then it is highly advisable to consult with a probate or property practitioner as soon as possible. Selling an unregistered property can create long delays during the sale process. The potential problems with selling unregistered property can limit the number of potential buyers and those that are interested may use the property registration status as a tool to negotiate a lower price. Registering the property before sale is advisable and the process can begin whilst the probate application is being processed.  In some circumstances, where there are complications, the registration process can take months, sometimes even years.

Ensure the Property is Well Maintained

Whist the application for probate is proceeding it’s important to keep probate property well maintained and ideally, it’s best to make it as presentable as possible so it appeals to potential buyers. You may want to consider:

  • Regular inspections: You can schedule regular inspections of the property to ensure that it is being maintained properly. This can help you identify any issues that need to be addressed.
  • Regular Maintenance: If you are the Executor of the estate, you can take responsibility for maintaining the property. Alternatively, you can hire a property management company to handle the maintenance for you.
  • Communicate with the beneficiaries: It’s important to keep the beneficiaries informed about the condition of the property and any maintenance that is being done. This can help avoid any misunderstandings or disputes.
  • Keep records: Make sure to keep records of any maintenance and repairs that are done on the property.  The estate should cover the costs of all maintenance and repairs (the Executor or Administrator may have to claim back expenses once the property is sold) so it’s important to keep clear and concise records. It’s also worth noting that if the probate estate is cash poor, in other words the money is locked in the property, the Executor may wish to consider a probate loan. For example a probate estate expense loan or an inheritance tax loan.
  • Consider Refurbishment: If the property is in a state of disrepair, it is possible to refurbish the property for sale to maximise the value. There are companies that will fund and project manage a refurbishment if the Executors are not in a position to do so.
  • Probate House Insurance: Whilst the probate application proceeds and before the probate property is sold, the property may be vulnerable to risks such as damage, theft, or liability issues. Having probate house insurance helps to safeguard the property against these risks.

It’s important to note that if the house was previously insured in the deceased’s name, that insurance policy will likely have lapsed on the date of death.  It’s also extremely important to note that a standard house insurance policy may not provide adequate coverage particularly of the probate property is unoccupied. Check the terms of the policy carefully and ideally, opt for a specialist probate house insurance which is specifically designed to address the unique circumstances of a property undergoing probate.

Common Questions and Answers About Selling a Probate Property

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

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

People can live in a probate property before it is sold. However, it is important to note that the living arrangements in a probate property can vary depending on the circumstances and the wishes of the beneficiaries. In some cases, the executor of the estate or the administrator may choose to live in the property temporarily to ensure its maintenance and security. In other cases, the property may be rented out to tenants to generate income while it is being prepared for sale. Either way, it’s advisable to take legal advice on either option to ensure both Executors and Beneficiaries are sure of the practical and financial implications of someone living in the property prior to sale.

Can you Empty a Probate Property Before Probate is Granted?

The executor or administrator of the estate may choose to remove the belongings from the property before probate if they believe it is necessary for the management of the estate. However, it is important to consult with a legal professional to ensure that all necessary steps are taken and to understand the legal implications of emptying the house before probate. Additionally, it’s advisable to consider the wishes of the beneficiaries and follow any instructions left in the will. If you decide to empty the property before probate you may consider using the services of a professional probate house clearance company who will clean, clear and document everything removed. Some companies also offer a property valuation and sale service.

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