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Is Probate Needed to Sell a Property?

22 May 2019

Whether or not Probate will be needed to deal with a property will depend on how it's owned. Probate will always be needed to sell a property owned in the deceased's sole name, but it's not always needed to transfer a property to a surviving joint owner.

According to a survey by Move With Us Estate Agents in 2015, around 1 in 10 properties on the UK market are being sold through Probate. So you have a good chance of either being involved in a Probate property sale or purchase at some point in your life.

What Exactly Is Probate?

When someone dies, their affairs need to be wound up, their debts settled, and everything they own distributed to those entitled to inherit it. This process is commonly called Probate, but what the term technically refers to is a legal document that grants someone with the legal authority to carry out this work.

If the deceased left a Will, this document is called the Grant of Probate, and it will be issued to the Executors named in the Will. If there is no Will, a document called a Grant of Letters of Administration will be issued instead to the person administering the Estate (called the Administrator). This document will confirm their authority to administer the Estate of the person who has died.

Dealing with a Probate Property

Whether you need Probate to sell the property or not will depend on how the property is held.

If the property is held in the sole name of the deceased, then Probate will always be needed to sell or transfer it into someone else's name, regardless of who this is.

If a property is held jointly as Joint Tenants, where neither party owns a divisible share, the deceased person's share will automatically pass by survivorship to the surviving owner and no Grant of Probate will be required.

If a property is held jointly as Tenants in Common each owner holds a defined share. This is usually representative of how much money they put in to the property when it was purchased. If a property is held as Tenants in Common, then the deceased's share in the property will not pass automatically to the surviving owner. Instead it will be subject to the deceased's Will or the Rules of Intestacy (if there is no Will).

If the deceased's share of the Property has been gifted to someone other than the surviving co-owner the property can be transferred into the names of the surviving co-owner and the beneficiaries of the deceased's Estate, and a Grant of Probate is not always needed.

Finding Out How a Property Is Owned

To determine how the property is held, you will need to look at the title deeds if the property is unregistered, or contact the Land Registry if the property is registered. Compulsory registration began in the UK in 1985 and 95% of land is now registered at Land Registry, so it's likely that the property will be registered, but it may not be if it has not changed hands since 1985.

If the property isn't registered and is now being sold or transferred following the owner's death, the buyer must begin the process of registering the land at the Land Registry before they can officially and, more importantly, legally own it.

To be able to sell a property of someone that has died, the property will need to be valued and included in the Inheritance Tax return sent to HM Revenue & Customs. This value should represent the market value a buyer would be willing to pay, so it would be best to ask a local estate agent to provide a valuation.

If you are unsure of whether or not Probate is needed following a homeowner's death, our Probate Advisors can help you.

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