Dealing with a deceased person’s property.
You must get a Grant of Representation before you can close the sale of a probate property. In the meantime, you can put the property on the market and even accept an offer.
When someone dies, their property must be either sold or transferred into another person’s name. The way in which this is achieved depends entirely on the circumstances.
If the deceased owned a property as joint tenants, and the co-owner is still alive, then the property usually passes directly to the surviving owner. For example, imagine Bob and Alice are married and own their home together as joint tenants. When Bob dies, his share of the property is automatically inherited by Alice. She now holds the property in her sole name. This occurs under a law known as the Rule of Survivorship. It allows property to be automatically inherited by surviving joint tenants, without the need for probate.
However, the situation is different if the deceased owned a property as tenants in common, or the property was held in their sole name. If either of these apply, the deceased’s share of the property should be passed to their beneficiaries. These will either be the beneficiaries named in their Will, or the beneficiaries determined by the Succession Act (if there is no Will). The beneficiaries can have the property transferred into their name. This is called an assent. Or, the property can be sold during the probate process, after which the beneficiaries will receive the proceeds of the sale.
Transfer or sale?
The deceased may have made specific requests regarding the fate of their property in their Will. This is often the case where the deceased has young or vulnerable beneficiaries and wants the property to be held in a trust.
Otherwise, the question of whether to transfer or sell the property is something for the personal representatives and beneficiaries to discuss. The personal representatives are the executors named in the deceased’s Will, or the deceased’s next of kin if there is no Will (which for the purposes of probate and estate administration are called administrators).
This can be a very emotive subject and there may be differing opinions on the matter. Some relatives may feel strongly about keeping the property in the family, while others may feel there is little benefit to retaining ownership. There can also be a practical need to sell the property, especially if the deceased died in debt. If so, the sale proceeds may be needed to pay off creditors and fulfil the legacies outlined in the Will.
Where the Will is silent on the matter, the final decision actually lies with the personal representatives – meaning the executors or administrator. However, the personal representatives must act in the best interests of the beneficiaries. This must guide their decision, rather than any personal agenda.
Selling a house in probate
If a deceased person’s property is to be sold, and there is not a surviving joint tenant, then it is necessary to go through probate first. This is a legal process that confirms the validity of the Will (if there is one) and gives authority to the personal representatives to handle the deceased’s assets.
Probate involves getting a document called a Grant of Representation from the Probate Office or District Probate Registry. This Grant must be obtained by the executors named in the Will, or the deceased’s next of kin if there is no Will, or if the executors are unable or unwilling to act.
The sale of a probate property cannot be closed until a Grant has been issued. Aside from this, selling a probate property is exactly the same as selling any other kind of residential property. The property can be listed for sale, an offer accepted, and the usual conveyancing process commenced. The only difference is that the sale cannot be finalised unless a Grant has been issued.
While probate is pending, the buyer and seller can proceed with all the usual property searches and queries. The conveyancing process can progress all the way up to sale agreed, meaning both parties are ready to close as soon as the Grant is issued.
Is a Grant needed?
Having to wait for a Grant can be frustrating and you may question whether it is necessary. Indeed, probate is not required every time a person dies. However, where the deceased owned property in their sole name, or as tenants in common, a Grant of Representation will be needed. This is because property is a considerable asset and will significantly increase the value of a deceased person’s estate. The courts want to be sure that this asset is being handled by the correct people, and is legally transferred (whether as a house or sale proceeds) to the right beneficiaries.
Remember that if the property is jointly owned, and the joint tenant is still alive, then probate is not usually needed.
How to sell a probate property
If you want to sell a probate property, you can go ahead and put the property on the market, conduct viewings and accept an offer – even if you have not yet got a Grant.
In the meantime, you should apply for a Grant of Representation from the Probate Office or District Probate Registry. There are three types of Grant. The one you need depends on whether there is a valid Will and/or an executor. You should apply for:
- A Grant of Probate if there is a valid Will and you are an executor
- A Grant of Administration if there is not a Will and you have been appointed as an administrator
- A Grant of Administration with Will Annexed if there is a Will but the executor is unable or unwilling to act
How to get a Grant
To prepare the probate application, you need to gather the following documents and information:
- Personal information relating to the deceased, including their name, address, date of birth, marital status, children and PPS numbers
- Details of the beneficiaries, including their names, addresses and PPS numbers
- A copy of the death certificate
- The Will and any codicils (if applicable)
- A list of the deceased’s assets and their value at the date of the deceased’s death
- A list of the deceased’s debts and their value
Once you have all of this, you must complete two copies of an Inland Revenue Affidavit. These must be signed and sworn in front of a practising solicitor or commissioner for oaths. You must also complete a probate application form. Then, you can apply for a Grant.
To get a Grant, you need to send the following to the Probate Office or District Probate Registry:
- The probate application form
- Two copies of the Inland Revenue Affidavit
- The death certificate
- A copy of the Will and any codicils (if applicable)
- Any other documents, such as a marriage certificate or divorce decree
When your application has been processed, you will be asked to attend an interview, swear an oath and pay a fee. If the Probate Office or District Probate Registry is satisfied that everything is in order, a Grant will be issued. At this point, the executor or administrator can finalise the sale of the property.
Can I use a probate solicitor?
Yes, you can ask a solicitor to apply for probate and administer the estate. In fact, most people enlist the help of a probate solicitor. Your solicitor will complete all the tasks listed above, including locating the deceased’s assets, completing the forms and submitting the application. This will remove a significant burden from your shoulders. It will also minimise the risk of mistakes being made, ensuring the application is approved the first time around.
When to put a probate property on the market?
Given the amount of work involved in getting a Grant, you might wonder at what point you should put the property on the market. This is entirely up to you. However, there is nothing stopping you from putting the property on the market at the earliest available opportunity. Your estate agent can set about finding the right purchaser while you arrange probate.
Probate properties are often an attractive proposition for prospective buyers, as there is no onward chain. Considering this, a buyer may be happy to put forward an offer and begin the conveyancing process, even though you have not yet obtained a Grant.
It is also worth noting that the property must be professionally valued as part of the probate process. This valuation needs to be backdated to the date of death. Because of this, it can make sense to have the property valued and listed for sale sooner rather than later. That way, you will have an accurate property valuation for the probate application.
Will probate delay the property sale?
Once the property is sale agreed, this can be conveyed to the Probate Office or District Probate Registry. The Probate Office may then be able to prioritise your application to ensure you do not lose the sale. So, the probate process will not necessarily delay the probate process – in fact, in certain circumstances, it can speed it up.
However, if you make a mistake on your application, the Probate Office will not be able to approve it until the matter has been rectified. Furthermore, gathering the information and documents needed for probate can take a considerable amount of time. This is especially true of complex estates, such as those containing overseas assets or missing beneficiaries. This in itself can cause a delay. You should, therefore, start the probate process as soon as possible. If it takes too long, prospective buyers may withdraw their offer and look elsewhere.
Keeping the property safe and secure
In the meantime, the personal representatives are responsible for keeping the property safe and secure. The deceased may have had home insurance, but the policy may no longer be valid if the property is empty. It is important to check this and to arrange the necessary cover.
Closing the sale
Once a Grant is issued, the personal representative officially has the authority to sell the deceased’s property. If a buyer has already been found, a date can be set for closing day when the property will be legally transferred to the new owners.
The sale proceeds then form part of the deceased’s estate. This money must be used to pay off any outstanding debts, taxes and legacies in the Will. When this has been done, the remaining money can be distributed to the beneficiaries.
Get expert legal advice
At Gibson & Associates, we have a specialist team of probate solicitors and a specialist team of property solicitors. Thanks to our multi-disciplinary service, we can help you throughout the probate process, including the sale of any probate property.