A Guide to Probate and Selling Property in Probate
18 minute read
Date Published - June 30th 2022
Date Updated - September 25th 2024
18 minute read
Date Published - June 30th 2022
Date Updated - September 25th 2024
Managing probate and selling a property in probate can be a daunting task, especially when you're already dealing with the emotional weight of losing a loved one. If you’re the Executor of a Will, you might be required to handle the sale or transfer of a house, flat or land after the owner has passed.
If the property was owned in a sole name, you’ll probably need a Grant of Probate before you can do anything (although this may not be necessary if the property was jointly owned with a surviving partner or put into a trust upon the owner's passing).
When you are selling a house in probate, there are certain considerations that need to be made.
If you would like further advice on selling a property in probate, please don’t hesitate to speak to one of our Conveyancing or Probate experts.
When someone dies, their estate - which includes everything they owned like their home, savings, and personal items - needs to be sorted out and distributed according to their wishes. That’s where probate comes in.
Probate is the legal process that gives someone, usually the person named as the Executor(s) named in the Will, the authority to take care of the deceased person’s estate. This might involve selling the house, paying off debts, and making sure that everything is handed out as the Will says.
To apply for a Grant of Probate from the court, which gives permission to deal with the estate, you’ll need to be named an Executor in the deceased’s Will. If there is no Will, only the most entitled person, for example, their closest living and able relative, can apply to become the administrator of the estate (known as Letters of Administration).
The executors of the Will are responsible for selling the property unless the beneficiaries of the Will want to have the property transferred into their names instead.
A grant of probate is a court-sealed document or court order which is issued by the Probate Registry and gives the executor named in a Will, the legal right to manage the deceased’s estate. It provides the executor with access to the deceased’s money and allows them to share the possessions amongst the beneficiaries in accordance with the Will.
It can take between 1-3 months for the grant of probate to be issued once the correct form has been submitted, and checks have been made to prevent any fraudulent applications. As part of the application, you would also need to provide an estimate of the value of the estate and determine whether or not there is Inheritance Tax to pay.
In the UK, probate is generally required to ensure the legal transfer of the deceased's assets according to their Will, or under the rules of intestacy if a Will does not exist.
Sole Ownership
Probate becomes mandatory when the deceased owns property solely in their name. Whether it's real estate, vehicles, or individual bank accounts, these assets need legal authority for transfer or sale. This authority comes in the form of a Grant of Probate, providing executors the power to act.
Assets Over a Certain Value
Some banks, building societies and insurance companies set thresholds for what requires a Grant of Probate to release the deceased's assets. While this threshold varies, assets exceeding £5,000 could necessitate probate. Each institution's limit differs, so it’s important to consult with them directly to provide clarity.
Unresolved Financial Obligations
Debts, outstanding taxes, or complex financial situations involving the deceased's estate can also necessitate probate. Executors or administrators must prove their legality to handle such affairs, resolving debts and adhering to tax obligations before distributing the estate.
Estates with Complex Elements
Complex estates, featuring multiple properties, stocks, or foreign assets, require thorough legal scrutiny.
Probate provides a systematic approach to address these complexities. It ensures lawful asset distribution and minimises the potential for disputes among beneficiaries.
Ensuring legal compliance throughout the probate process is crucial to avoid future
complications. Solicitors specialising in probate law can offer invaluable guidance, streamlining asset distribution and avoiding unnecessary legal hurdles. Their expertise not only makes sure all legal and tax obligations are fulfilled but can also aid in efficiently managing estates.
Settling and distributing an estate in the UK doesn't always necessitate going through probate. Certain circumstances allow for the bypassing of this legal process, making the handling of a deceased's estate more straightforward. Understanding when probate is not required can save time and potential legal fees.
Joint Ownership
Assets owned jointly typically transfer directly to the surviving owner without the need for probate. This is common with property and bank accounts held in joint names. Upon the death of one party, ownership seamlessly transfers to the co-owner, bypassing the probate process entirely.
Small Estates
Estates of small value often do not require probate. The threshold varies between financial institutions, but generally, if an estate's total value is below £5,000 to £50,000, banks and other financial organisations may release funds without needing probate. You should always check with the relevant institution as policies can differ.
Specific Financial Products
Certain financial products are designed to bypass probate. Life insurance policies and pension benefits, when named to a specific beneficiary, can often be transferred without going through probate. These arrangements allow for the direct distribution of funds to named individuals, thereby reducing the complexities and time involved in settling an estate.
Low-Risk Estates
In scenarios where the deceased's assets are straightforward and devoid of any complexities such as outstanding debts or disputes, probate might not be required. However, it's crucial to seek professional advice to ensure all legal obligations are met. Solicitors specialising in estate and probate law can provide clarity and assist in determining whether probate is necessary for your specific situation.
Determining whether you require probate Will depend on the specifics of the deceased's assets and the manner in which they were held.
Factors Influencing the Need for Probate:
The timeline for probate can vary significantly depending on several factors, such as the size and complexity of the estate, any disputes that may arise, and the efficiency of the Probate Registry.
Standard Probate Timeline
Typically, the process begins with the submission of a probate application, which, on average, takes between eight to twelve weeks for the Probate Registry to process.
Once probate is granted, the executor has the authority to access the deceased's assets, but collecting these assets and distributing them according to the will can take additional time. For straightforward estates, without disputes and where assets are easily accessible, this stage might take an additional three to six months.
Complex Probate Cases
For larger or more complex estates, especially those involving disputes among beneficiaries or complications like properties abroad, the process can extend beyond a year. Legal challenges or the discovery of additional assets not initially identified can further delay proceedings.
Solicitors experienced in probate law can streamline the proceedings, ensuring that the application is filled out correctly and submitted with all required documentation, potentially mitigating delays. Furthermore, in complicated estates, they can navigate legal challenges and ensure compliance with UK law, ultimately speeding up the process.
If you’re involved in the probate process, you'll probably want to keep track of how things are progressing. Fortunately, there are a few ways you can do that in the UK.
If you applied for probate yourself, you should get updates from the Probate Registry as your application moves along. If you feel like you’re not hearing enough or if you’re worried about delays, you can always contact the Probate Registry directly to get more information.
There’s also an online tracking service from HM Courts and Tribunals Service. If you applied online, you can log in anytime to check the status of your application.
If a solicitor is handling probate for you, they’ll typically keep you informed as things progress. But if you have any questions or need an update, don’t hesitate to reach out to them directly.
The probate process can be complicated, and you can easily make errors if you are not sure how to approach it. Here are some things to be aware of during probate:
The probate process can be delayed due to several factors, including:
Third-party delays: Complications usually occur in asset valuation when the deceased has interests in trusts, overseas assets, or even a Will made overseas.
Selling a property in probate can seem daunting, but several key considerations help streamline the process.
Understanding the property’s value is essential when selling in probate. Accurate valuations help correctly calculate Inheritance Tax. As the Executor, you’ll need to arrange several valuations from reputable estate agents or chartered surveyors. This ensures the total assets and liabilities of the deceased are accurately reported in the probate application, fulfilling important legal requirements. Using multiple valuations provides a balanced view of the market value, helping you avoid disputes and ensuring a fair sale price.
Title deeds are essential documents that prove ownership. Locating and reviewing these deeds ensures there’s no confusion over ownership. If the deeds are missing, you can request copies from the Land Registry. It’s a good idea to resolve any discrepancies or issues with the property’s title before proceeding, as this can delay the sale. Addressing these issues early helps avoid complications during the conveyancing process.
Determining Inheritance Tax liability is a crucial step. This tax applies to the estate's total value, including property. The property valuation you obtained earlier will help in calculating IHT. Paying the tax promptly is important to avoid penalties and interest. Consulting a probate solicitor can help you understand IHT allowances and reliefs, potentially reducing the tax burden. Ensuring all the necessary forms are completed correctly will also help prevent delays in the probate process.
Obtaining a Grant of Probate is required before you can list the property for sale. This legal document gives you the authority to manage and sell the deceased’s estate. The probate application typically takes around 8 weeks, but it may take longer if there are complications. Once you have the Grant, you can begin marketing the property and starting the conveyancing process. It’s important to inform the buyer about the probate timeline, as contracts cannot be fully exchanged until the process is complete.
As the Executor, it’s your responsibility to maintain and secure the property. Unoccupied properties face risks such as damage, dampness, vandalism, and fraud. You’ll need to ensure that appropriate insurance is in place and regularly check on the property. Simple actions, like keeping the heating on during winter, can prevent issues like burst pipes. Keeping the property tidy and secure not only helps preserve its value but also reassures potential buyers.
If the property's value increases between obtaining the Grant of Probate and selling, Capital Gains Tax (CGT) may apply. As the Executor, you’ll need to be aware of this potential liability. Market fluctuations can significantly affect property values and tax obligations. Understanding how CGT works and consulting with a probate lawyer can help you manage and reduce these taxes. Staying informed about property market trends is also beneficial to ensure you're prepared for any tax implications.
Take inventory of all the assets
This is the first step in identifying and locating all the deceased's assets and debts to determine the estate's value. The executor must create a thorough inventory of the deceased person's estate. This includes gathering all relevant documents, such as property deeds and bank statements, and finding out all the details of the money owed to the estate.
Secure and manage the assets
The executor is responsible for securing and managing the deceased's assets and must ensure that no property is lost before or during probate until it can be distributed to the beneficiaries.
Apply for probate
To start the probate procedure, the executor must apply for a grant of probate to allow them to distribute and handle the estate.
Sell or Dispose of Assets
Before probate is granted, the executor is not legally allowed to sell, distribute, or dispose of any assets from the estate. Doing so could lead to legal complications and potentially reduce the estate's value, harming the beneficiaries' interests. The assets must remain intact until probate gives the official go-ahead.
Empty the House
While securing the property is allowed, completely clearing out the house or removing valuable items before probate can lead to significant legal risks. The executor must ensure that all assets remain in the estate until they are legally permitted to distribute them. This ensures that all beneficiaries receive their rightful inheritance.
If the deceased person was the sole owner of the property, the executor cannot sell it before getting a grant of probate. It makes perfect sense to get the property valued and put it onto the market, but to complete the sale before probate is granted would be foolish and could result in legal complications.
Although you can apply for probate yourself, it’s better to get a specialist probate solicitor involved with the whole process from the start. This is especially the case if you are administering an estate where there are significant amounts of money involved, or where there is any uncertainty or ambiguity in the Will. Also, if you are dealing with insolvent estates, where the debts outweigh the value of the estate, it can make it a time-consuming and complicated process.
Sometimes, the estate can be complicated, especially where the Will is likely to be contested, where the Will is not clear, where money is left in a trust or where there is property abroad.
If there are a number of different types of assets involved such as a business, overseas accounts, multiple properties, and pensions, it can be difficult to accurately collect and distribute amongst beneficiaries.
Furthermore, in an age where a lot of information is now online, it is not unusual for people to have accounts with solely online financial institutions or own stocks and bonds, unknown to their families. If someone dies without disclosing these, it can be very difficult to track them down.
Executors are ultimately responsible for the correct administration of the estate and if there is an unreasonable delay or assets are not correctly distributed, then executors can be personally liable to the beneficiaries and creditors.
Probate can be demanding and time-consuming, especially if you’re unsure whether you’ll need it or not. That’s where seeking expert advice makes all the difference.
At GloverPriest, our solicitors can advise on or help with any stage of the probate process, providing friendly and transparent legal advice. If you would like further advice on probate, trust our thorough specialist Wills, Trusts, LPA and Probate solicitors to explain the processes.
Let us simplify the probate process for you. Get in touch today.
The short answer is no, you don’t technically need to instruct a solicitor for probate. However, the long answer is that in some cases, it may be beneficial if you do use a solicitor to help with probate.
Yes, probate can sometimes be bypassed if the estate's conditions allow it, such as in cases of joint ownership of property, small estates, or when certain financial products are designated to bypass the estate.
If a Will has been left, it is the type of assets, how they are owned and the value of the estate, that will determine whether a grant of probate is needed or not.
Once probate is granted, the executor gains the legal authority to manage the deceased’s estate. Your first responsibility is to settle any outstanding debts and taxes. After that, you can distribute the remaining estate to the beneficiaries as specified in the Will. If the estate includes property, you’ll need to manage its upkeep to maintain its market value until it's sold. Consulting a probate solicitor can help you ensure everything is handled correctly.
There’s no strict deadline for selling a probate property in the UK, but it's generally advisable to complete the sale within a year. This timeframe helps reduce financial risks and other complications. However, if you face issues like market downturns or legal disputes, this period might extend. Seeking advice from a probate lawyer can help you navigate such challenges.
In certain situations, you may find yourself in a position to challenge someone else's probate application by entering a caveat. This legal action is initiated when there is a dispute concerning various aspects, such as:
Upon entering a caveat, it initially lasts for a period of 6 months. However, there is an option to extend this period for an additional 6 months if necessary. Importantly, the caveat serves as a temporary halt to all applications for probate on the estate during this time.
It's crucial to be aware that entering a caveat can potentially lead to legal action and, subsequently, legal costs. Therefore, it is advisable to explore the possibility of reaching an amicable agreement with the individual applying for probate before taking legal action. Open communication and negotiation can often help resolve disputes without resorting to costly legal processes.
Yes, a beneficiary can potentially stop the sale of a probate property if there are valid legal grounds, such as disputes over the Will's interpretation or the executor's duties. In such cases, consulting a probate solicitor can provide clarity and help resolve disputes. If necessary, I might need to seek court intervention to determine the best course of action.
Probate is generally needed to sell a house if the property is solely in the deceased person's name, even if there's a Will. This legal process validates the Will and authorises the executor to handle the estate, including selling the property. However, probate might not be necessary for jointly owned properties or small estates, and a probate solicitor can confirm this.
Obtaining probate with a Will typically takes around 8 to 12 weeks. This duration can be extended if there are complications like contested Wills or complex estates. Once probate is granted, administering the estate, including selling any property, might take several more months. It's essential to consult a probate lawyer to streamline this process and manage any potential issues.
In the UK, probate is usually required if the estate exceeds £5,000 or includes property solely in the deceased's name. Smaller estates and jointly owned properties might not need probate. The specific threshold can vary based on the asset types and values. Consulting a probate solicitor helps determine if probate is necessary and simplifies the process.
After probate is granted, you can start administering the estate. This involves paying off debts, distributing assets to beneficiaries according to the Will, and managing any remaining financial affairs, such as selling property. Maintaining regular communication with beneficiaries ensures transparency and smooth administration. A probate lawyer can offer guidance throughout this process to help you ensure compliance and efficiency.
In short, no, you cannot clear a house before probate. If a loved one or close relative passes away, you must obtain the grant of probate to settle the estate before you can clear the house or go through their belongings.
This is because the deceased’s home may contain valuable assets such as cash, jewellery, or antiques. The court aims to prevent these valuable items from being stolen or sold before probate is complete, as doing so could mean that the beneficiaries might not receive what they are entitled to under the Will.
Clearing a house before probate without proper legal authority can lead to serious consequences. If items are removed or sold prematurely, it could be considered theft, and the executor might face legal penalties.
However, there are some circumstances where you might be able to clear a house before probate. For example, if the house is considered a non-probate asset - meaning probate isn’t required because the property title has already been transferred into someone else’s name - or if the home is jointly owned, clearing the property may be permissible.
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