Is Probate Needed if the Deceased was the Sole Owner of a Property?
12 January 2017
If your loved one dies and was the sole owner of a property in England or Wales, Probate will be needed. The Executors of the Will can do certain things with the property without a Grant of Probate (as explained below), but could encounter certain restrictions in the future.
Legal Owner vs Beneficial Owner
There are two aspects to owning a property. There is the legal owner and the beneficial owner. The legal owner is the person registered at the Land Registry, or if the property is not registered at the Land Registry, it is the person named on the last conveyance.
The legal owner and beneficial owner will generally be the same person. An example where they are different is when a property is being held in a Trust. In such cases, the legal owner will be the Trustee of the Trust, but the beneficial owner will be the beneficiary of the Trust.
What Happens when Someone Passes Away?
When someone passes away in England or Wales, his or her Estate is dealt with by a Personal Representative, who will either be an Executor under the Will or an Administrator if the person dies without a Will.
In general terms, an Executor has authority to act in the Estate from the date of death, whereas the authority for the Administrator stems from the Grant of Letters of Administration. In either case, it is critical that the Executor or Administrator ensures that the property is insured and that the property is protected.
What Can an Executor Do Without Grant of Probate?
As the Executor is appointed by the Will and not by the Grant of Probate, he or she has authority to take action in relation to the property without Probate.
For example, the Executor could in theory enter into a Tenancy Arrangement. However, this must in the best interest of the Estate, and, ideally, the beneficiaries should be in agreement. Taking such action would be unusual and appropriate advice should always be taken.
Additionally, the Executor could transfer the beneficial interest in a registered property to the beneficiary under the Will without a Grant of Probate. We would strongly advise against this in case the Will is challenged, and to avoid any issue with insurance or tax. Further, there will be a problem for the beneficiary when he or she wishes the property to be sold.
In the case of unregistered property, a transfer to a beneficiary would trigger first registration of title at the Land Registry; for which they would require the Grant of Probate. It should be noted that there is a strict timescale for the application for first registration.
Although the beneficial interest in the property could be transferred without a Grant of Probate, an Executor would be unable to register the legal interest in the property at the Land Registry without the Grant.
What Can an Administrator Do Without a Grant?
As indicated above, the authority of an Administrator (i.e. the Personal Representative where someone died without making a Will) comes from the Grant of Letters of Administration. An Administrator cannot, therefore, take the above steps which the Executor can take without a Grant, although he or she should take appropriate steps to protect the property and ensure that it is insured.
Sale of the Property
The most significant problem arises when the property needs to be sold. Although the property can be marketed for sale before the Grant is obtained and an offer can be accepted, the buyer will insist on seeing the Grant of Probate before exchange of contracts to check that the Personal Representative is entitled to sell it.
In short, when an Estate incudes a property, the Grant of Probate should be obtained as soon as possible.
With our Probate Complete Service we take full responsibility for getting the Grant of Probate and dealing with the Legal, Tax (excluding VAT), Property and Estate Administration affairs.