Is Probate Needed to Sell a House?
16 December 2019
The short answer to this question is that it depends on how the house was owned. We look at the reasons why Probate may or may not be needed, what Probate actually is and the process selling a house when Probate is needed.
Reportedly, around one in 10 properties on the market in the UK is a Probate sale. This means you have a very good chance of either being involved in a Probate sale or a Probate purchase at some point in your life.
What is Probate?
The term 'Probate' refers to an official legal document which is sometimes needed to wind up the affairs of a deceased person. This document will be issued either to the Executors named in the Will or, if there is no Will, the closest family members, and it confirms their authority to administer the Estate. The document is called a Grant of Probate if there is a Will or a Grant of Letters of Administration if there isn't. The process of obtaining this document and using it to administer the Estate is commonly referred to as Probate.
For ease, we will refer to a Grant of Probate throughout this article, but the same applies to a Grant of Letters of Administration.
When is Probate Needed to Sell a Property?
If the deceased owned a property in their sole name Probate will generally be needed before it can be sold or transferred.
If Probate is needed, the property can be put on the market and an offer can be accepted before the Grant of Probate has been obtained, but the sale won't be able to complete without the Grant.
Although it is technically true that Executors can exchange contracts without the Grant of Probate, this is not best practice and is very rarely done. We would always recommend obtaining the Grant of Probate prior to exchanging contracts. Exchanging contracts without Probate would only be possible on the basis that Probate is granted in time for completion, and this inevitably carries a high level of risk.
Jointly Owned Property
There are two ways in which a property can be jointly owned; either as joint tenants or tenants in common. The way in which the property is jointly owned will determine whether or not Probate is needed.
When a property is owned as joint tenants, neither person owns a specific share of the property. On one owner's death the property will automatically transfer into the name of the surviving owner. Probate is not required for this.
Tenants in common own their house in separate percentage shares, and if one owner dies their share won't automatically pass to the survivor. Instead, it will form part of their estate and pass to those entitled to inherit it either in line with the terms of their Will (if they made one) or the Rules of Intestacy (if they didn't). Probate will likely be needed to deal with a property owned in this way.
If you are a surviving tenant in common and you want to sell the property, seek advice from a professional Probate Specialist who can help ensure you are doing the right thing.
Co-op Legal Services can help you if you have a house to sell and you need help with Probate. With our Probate Complete Service, we offer a complete Probate and Estate Administration service to take the stress out of the Probate process.
Contact us to make an appointment with one of our Probate Consultants who can meet with you at home (in England or Wales) to offer practical help and advice and provide you with a fixed Probate quote.