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Probate sales - what you need to know

Napthens - August 30th 2017

In order to sell a property where either one or both of the joint property owners has died, it is vital to be aware of the documents and process required.

Knowledge of the situation and preparation is key to ensuring a smooth sale. An understanding of the process will also assist in the management of expectations.

One of the obvious questions is whether a Grant of Probate is required. In order to obtain the Grant, an application needs to be made to the Probate Registry.  It can take between 6 to 12 weeks from an initial application in order to obtain this.  So, the question as to whether this document is required for the sale is crucial as it could potentially delay the sale if not obtained quickly.

Is a Grant of Probate required if the other joint owner is still alive?

If a property is in joint names and one of the owners is still alive then, a Grant of Probate may not be required.

If the property is held as tenants in common (a restriction on the register) then the surviving owner can sell the property by appointing a further person as a trustee, which we can arrange. The grant may only then be required in relation to the distribution of the sale proceeds.

If the property is held as joint tenants, with the surviving owner receiving the whole of the property, then all that is required is the original death certificate.

Is a Grant of Probate required when the sole owner has died or both owners have died?

Yes, a Grant will be required. Any purchaser will require proof that either the executors or personal representatives are entitled to deal with the property.

Can a property be sold before Probate is granted?

As mentioned, if there is a surviving co-owner, then the property can be sold before Probate is granted.

Where the Grant is required, exchange of contracts cannot take place until this is obtained.

However, this does not mean that the property cannot be marketed - it is advisable to start marketing the property as soon as possible, as it may take time for a sale to be agreed.

Even if the Grant is not obtained once a sale has been agreed, the contract and supporting documents can be issued to the buyer’s lawyer and the process started. Searches can be sent out and enquiries raised and the Grant can then follow.

The property deeds

If the property is registered at the Land Registry, copies of the documents can be obtained. As lawyers, we will check the title documents are in order and the property is registered in the correct names and will check the title plan with the executors.

If the property is unregistered, the executors will need to establish the location of the original property deeds. These could be held by the deceased’s lawyer, bank or at the property itself.

Time frames

There is nothing to prevent the executors from marketing the property, or even accepting an offer on it. As agents, it is advisable to keep a prospective buyer up to date in relation to the executor’s steps and the timeframes in relation to obtaining probate.

For further information on this topic, please contact a member of the residential property team.

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