Do You Need Probate To Sell A House?
Probate is the name given to the process through which the Estate of a deceased person is administered, and their affairs finalised. Their debts and liabilities must be settled, and the remaining assets distributed to the beneficiaries pursuant to the terms of the Will. The individuals tasked with doing so are nominated by the deceased and are known as Executors. Executors often require the permission of the Court before they can administer the Estate, but not always. So, when is a Grant of Probate required, and do you need probate to sell a house?
If the deceased died without leaving a Will, the Court will appoint individuals to administer the Estate, called Administrators. Administrators do not require a Grant of Probate to act but, rather, a document known as Letters of Administration. In this article we explain the position with reference to Executors and Grants of Probate, but many of the principles similarly apply to Administrators.
When Do You Need A Grant Of Probate?
When a deceased person leaves a Will, they will have nominated individuals to act as Executors of their Estate. Executors are usually family members or friends but can also be professionals such as solicitors.
Whilst Executors obtain their power from the Will itself, they usually require a Grant of Probate before they can administer an Estate. There are limited exceptions to this general rule, which include if the value of an Estate is particularly small or all of its assets are held jointly with other people. If the deceased owned their house jointly – with their spouse or partner, for example – probate may not be required. Our expert probate solicitors will advise whether probate is needed to sell a house in your situation.
If the deceased owned their house in their sole name, Executors need a Grant of Probate before they can sell it.
Matters To Consider When Selling A House In Probate
Since you need probate to sell a house, it follows that you can only complete a sale once the Grant of Probate has been received. This can take several weeks or even months depending on the circumstances. Incomplete or incorrect probate applications can be rejected by the Court and considerably delayed, so it is crucial to ensure the relevant documentation is completed and submitted properly. Many Executors seek legal assistance when completing the probate application to minimise the chance of rejection.
Further, the Grant of Probate can be significantly delayed by the inheritance tax matters that must be dealt with before an application can be made. You must ascertain the value of the Estate and complete and send the appropriate inheritance tax documentation to HMRC. You usually have to pay at least some of any inheritance tax due before the Grant of Probate will be issued.
You can put the deceased’s house on the market and begin the conveyancing process pending receipt of the Grant of Probate. Technically, you can exchange contracts before the Grant has been issued but are then reliant on receiving it in time for completion. It is impossible to predict with any accuracy how long the Court will take to process a Grant of Probate, so exchanging contracts before receiving it carries significant risk. As a result, it is seldom done, and most Executors wait until they have received the Grant before exchanging contracts.
The overarching duty of Executors is to act in the best interests of the Estate. In the context of selling the deceased’s house, satisfying this duty can necessitate numerous tasks.
For example, to act in the best interests of the Estate, you must sell the house at a fair market value. If you fail to do so, the beneficiaries can object to the sale and even compel you to personally make good any losses they sustain as a result. You will need to obtain a few valuations to ascertain how much the house is worth and achieve the best possible sale price.
Executors must ensure the property is kept safe and retains its value pending sale. This is particularly pertinent in cases where the death of the owner leaves the property vacant. If you do not keep the house safe and secure, you may be forced to compensate the beneficiaries for any resultant loss in value.
Measures you should consider taking to ensure you comply with your legal duties in this regard include the following:
• Checking The Insurance.
Many insurance policies are rendered invalid if the property is left vacant for a specified period of time. You must check whether the terms of the property’s insurance policy include such a limitation and, if so, arrange for appropriate cover. If you do not and the property is damaged by an uninsured risk such as a flood or fire, you may have to personally cover the cost of returning the property to its previous state.
• Ensuring The House Is Secure.
Vacant houses can be a target for unscrupulous individuals such as vandals and burglars. Make sure you thoroughly check that all windows and doors are locked, any outbuildings such as garages and sheds are secure, and the alarm system is initiated if there is one.
You should also seek to minimise the risk of problems such as floods and fire by turning off all electrical appliances and periodically checking the water pipes in cold weather. It may be prudent to intermittently turn on the central heating or keep it on low during particularly cold spells.
• Visiting The Property Regularly.
Regular visits to the house pending sale will minimise the risks inherent in a vacant property. You will detect potential issues early and can then take steps to mitigate any harm. Regular attendance at the property may also be a condition of any insurance policy.
How We Can Assist With Selling A House In Probate
In cases where you need probate to sell a house, we are here to help. We will ensure your probate application is completed accurately and swiftly to avoid any unnecessary delays and allow you to complete the sale as quickly as possible. We will advise on your legal duties as an Executor and how you can properly fulfil them, thereby minimising the risk of any personal liability.