Can a Property be Sold before Probate is Granted?
26 February 2018
This depends on the way the property was owned. The following information applies in England and Wales.
If the property was owned jointly as Joint Tenants, a Grant is not necessary for the sale of the property. If the property was owned jointly as Tenants in Common, then a Grant may be required for the sale of the property to take place.
Here are brief explanations about how Probate works in relation to property ownership in English law.
What is Probate?
Probate is the process where the Executor/s that have been named in the Will or the closest surviving next of kin (if there was no Will) apply to the Probate Court to obtain a document which gives them authority to deal with the deceased person’s Estate. This document is called the Grant of Probate if there is a valid Will, or Grant of Letters of Administration if there is no Will.
The Grant confirms that the named person/s has the legal authority to deal with the deceased's assets, including any property that the deceased owned, and that they can administer the Estate.
Property Owned by Joint Tenants
If a property is owned by more than one owner as Joint Tenants this means that both own the property as a whole, with neither owning a specific share. When one of the owners dies, their share will pass automatically to the surviving owner. If the surviving owner then wants to sell the property, they can do so without a Grant of Probate (Grant).
Property Owned by Tenants in Common
If a property is owned as Tenants in Common, this means that each person owns a specific share of the property. When one owner dies, their share does not pass automatically to the surviving owner as it does when the property is owned as Joint Tenants. Instead, the deceased's share will pass in accordance with their Will or the Rules of Intestacy if no Will was made.
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Sometimes, the deceased may leave their share of the property to someone who is not the surviving owner, for example, their children. In this situation, a Grant will normally be required in respect of the deceased's share before the property can be sold.
In cases where the property being sold is in the sole name of the deceased person, a Grant is needed before the property can be sold. However, this does not mean that the property cannot be marketed until Probate has been granted. A property can take time to sell and applying for Probate while the property is on the market can help to speed up the process. It also means that once an offer has been accepted, the sale can complete when the Grant has been issued.
It is advisable to make any potential buyers aware that Probate is being obtained and completion can only take place when the Grant has been extracted (issued).
So to summarise, if a property is owned in the sole name of the deceased, a Grant of Probate or Grant of Representation will be required before it can be sold. If the property was owned jointly as Joint Tenants, a Grant is not necessary for the sale of the property. However, if a property was owned jointly as Tenants in Common, then a Grant may be required for the sale of the property to take place. In this instance it is best to get Probate advice before selling the property.