A Guide to Dealing with Property in Probate

17 December 2018

By Probate Solicitor, Mahua Jana

There are a lot of things to consider when determining how a property should be dealt with when the owner has died. We provide a brief overview of what will need to be considered.

When the owner of a property dies, that property will form part of their Estate (which is the collective term for everything they owned). The property will need to be either sold or transferred as part of the administration of the Estate and this will need to be done in line with inheritance laws and the terms of the Will (if there is one).

1. Is the Property Mortgaged?

One of the first things that will need to be established is whether there is an outstanding mortgage on the property that will need to be settled. If there is, then the mortgage company should be informed of the death as soon as possible.

It may be that the property needs to be sold in order to settle the mortgage, but this is not always the case. For more information, see Does a Mortgaged House Need to Be Sold after the Owner Dies?

2. Is there a Will?

If there is a Will then the person responsible for dealing with the Estate (the Personal Representative) can be guided by the terms of the Will as to how to deal with the property.

For example the deceased may have stated in their Will exactly who they wish to leave their property to upon their death. If there is no specific gift of a property and it forms part of the overall remaining Estate (residuary Estate) then there will be guidance in the Will on how the residuary Estate should be distributed to ensure that everyone receives their entitlement.

If there is no Will, then inheritance laws called the Rules of Intestacy will apply and these laws will determine how the property is treated. A Probate Solicitor will be able to provide you with more detailed guidance in this situation.

3. How is the Property Owned?

The next thing that will need to be considered is whether the property was owned in the deceased's sole name or in joint names with another person. If the property is owned in the sole name of the deceased, then it can be passed on to those entitled to inherit it under the Rules of Intestacy or in line with the terms of their Will.

If the deceased owned the property jointly with another person, then this can directly affect what happens to it after their death. There are two ways in which a property can be jointly owned.

These are:

  • As Joint Tenants – ownership of the property will automatically pass to the surviving joint owner, regardless of whether or not there's a Will and what it says.
  • As Tenants in Common – each owner owns a defined percentage of the property, and the deceased's share will form part of their Estate so be dealt with in line with the Rules of Intestacy and the terms of the Will (if there is one).

4. How Many Beneficiaries are Entitled to a Share in the Property?

In the event that the property is owned in the deceased's sole name and there are several Beneficiaries, then the easiest course of action is to sell the property. Then each Beneficiary can receive their share from the Estate.

5. Does Anyone Else Live in the Property?

The final point to consider is whether anyone else is currently living in the property. The situation can get more complicated if there is someone living in the property who does not own it, as shown in the example below:

Mark and John are brothers and live in a house that is owned in Mark's sole name. Mark and John also have two sisters; Clare and Beth. Mark dies, leaving a Will in which he leaves everything to his siblings, to be split equally between them. The easiest course of action is for the property to be sold and proceeds split three ways. However this could cause major issues for John who may not be able to afford to buy another house, even with his share of the net proceeds from the sale.

In the above scenario, selling the property is not the best option. If the property is not mortgaged, the Personal Representative could consider 'assenting' the property into the names of all three siblings, with a provision that John could continue living there.

Advice and Guidance from a Probate Specialist

This list is not exhaustive and there are other factors that you may need to consider when dealing with a property during Probate. For specialist advice and guidance on what steps you should take, speak to a Probate Specialist at Co-op Legal Services.

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