Selling a property after the death of a loved one
When someone close to you dies it will be a traumatic time for you and we understand that dealing with the financial affairs of a loved one after a death can be a daunting prospect. When it comes to selling the home of a deceased friend or relative we think it pays to put the matter in the hands of a conveyancer you can trust and who has dealt with the situation before and can provide the right advice and support.
Probate
When a Will is read and you find yourself nominated as an executor, the responsibility can seem quite overwhelming.
The first actions of the executor are usually to locate all the legal paperwork relating to the deceased person's financial affairs and go through them to establish the scope of the task involved. Quite often there will be at least one property that will need to be sold or transferred to beneficiaries as part of the executor's duties.
Probate will need to be applied for. The probate registries are generally very helpful but the forms are a bit complicated. You can attempt them yourself if the estate is not too valuable or too complicated. However, unless you are absolutely sure of what you are doing we would always recommend that you at least consult a specialist probate practitioner for advice before attempting to make an application to the registry, especially where there are large sums involved or complicated arrangements in the Will.
The vast majority of Wills are, however, relatively straightforward, and you might find that it is possible to obtain probate within a fairly quick timescale, although in our experience even the most simple Wills take at least 28 days to get through the probate process.
So, now you have your grant of probate appointing you to administer the deceased person's property. How do you deal with the disposal of the home or any other properties the deceased person owned? Some Wills will say something along the lines of "I leave my house at 1 Station Road, Anytown to John Smith". In this case the procedure for transferring the property would involve the use of a legal instrument known as an Assent to transfer the legal title of the house into the beneficiary's name .
Most wills will say something more general along the lines of "I leave all my property to my executors to sell it and then to give the proceeds to John Smith" In this case the procedure would involve you as the executor putting the house on the open market and selling it then distributing the cash sum raised by the sale to the beneficiaries as directed by the Will. We can look at the Will and advise you which procedure would apply in your case and give you a bespoke quotation for the legal work appropriate to the transaction.
If you are already using a probate practitioner or solicitor to assist you with the grant of probate they will often try and deal with the conveyancing aspect of the administration of the estate themselves. You are free to instruct a separate solicitor to deal with the conveyancing work involved in selling a property for the estate and there are a number of good reasons why you should consider this. Firstly, most solicitors concentrate on their chosen area of practice and rarely get involved in other areas. So a probate practitioner, whilst expert at what she or he does, does not necessarily have much experience of the conveyancing process. Secondly, most probate practitioners agree to do the administration work on an estate based upon a percentage of the value of the estate or an hourly rate. This will mean that the rate at which they charge fees will be a lot more than that charged by a specialist conveyancer who can usually offer a fixed price. Thirdly, a specialist conveyancer is likely to have more specialist tools available to keep your matter moving forward and keep you informed. Our casetracker system allows you to login and check progress, leave messages and upload or download paperwork using your home computer, tablet or smart phone. Only specialist conveyancers tend to have invested in these labour saving systems.
The best way of selling the house will be through a reputable local estate agent. It often pays to have valuations by a number of agents carried out so as to compare prices. Please be aware that some agents have clients on their books specifically looking for probate properties to buy as they often try and get bargains this way. If you are in any doubt that an estate agent may be trying to encourage you to sell the property for under its true market value for a "quick sale" then take a step back and think. It could be that you are being pushed into something that is not in the best interests of the beneficiaries of the estate. Remember that you are duty bound to obtain the best reasonable price you can. Similarly, we would not recommend the use of auctions to sell the property "quickly". Auctions have their place, but would only generally be used where the property has failed to sell using some more conventional route and/or there is some legitimate time pressure to dispose of the property quickly and all the beneficiaries agree.
Once you have found a buyer and a price has been negotiated you can instruct a conveyancer to deal with the legal work involved in disposing of the property. We deal with probate sales every week and have staff members who know all the processes involved in selling for an executor. Our fixed price quotations are tailored to your needs so that you will always know what price you are paying and that the quotation will reflect the actual work you want us to undertake. We can guide you through the process of completing the enquiries which the buyer's solicitor will raise and we understand that as an executor you may not have a great deal of first hand knowledge of the property and feel out of your depth when being asked specific and detailed questions about it. Our staff are used to guiding executors through the paperwork and suggesting how answers should be given so as to ensure that you comply with your duties as an executor.
We will always ensure that your position is protected to the best of our ability, for example we limit the title guarantee that the seller gives in the contract so that you cannot be held liable for a misstatement about something where there was no possibility of you even knowing about it due to your limited personal knowledge of the property.
On completion, we will deal with the repayment of any mortgages which the deceased had on the property out of the money we receive from the buyer. If there was no mortgage we should be able to account to you very swiftly, usually on the same day as completion.
It is recommended practice to set up a separate "estate account" so that you can pay any money received from sale of the deceased person's assets into this account and keep it separate from your own money. Using your own bank account to pay in such monies is probably not appropriate in the vast majority of cases unless you are the sole executor and also the sole beneficiary. It is important to show probity and transparency when dealing with an estate so as to minimise the possibility of being challenged at a later stage over the way you have managed the estate. Setting up an estate account will go a long way towards doing this.
We do occasionally have executors who ask us to send the property sale proceeds directly to a beneficiary rather than to the executor. We do not regard this as best practice for a number of reasons. In the vast majority of cases we will be be unable to do so. We would suggest that you bear this in mind before you agree any such arrangement with a beneficiary. We understand that beneficiaries can be eager to get their money but it is the executor's job to distribute the funds themselves at the appropriate time and in accordance with the wishes of the deceased and not in order to gratify the whim of a beneficiary who is chasing for quick payment.
Once the completion has taken place and the net sale proceeds transferred to you we will provide an itemised account for safe keeping with the estate papers.
Frequently asked questions
How long does the executor of a will have to settle an estate?
There is no set time limit for administering the estate but the executor has a duty to act in the best interests of the estate to get it wound up without any unreasonable delay.
Can the executor of an estate sell the property?
Yes an executor can sell a property once they have been granted probate.
How long does an executor have to sell a house?
There is no set time limit for selling the house of the deceased but the executor has a duty to act in the best interests of the estate to get it wound up without any unreasonable delay.
What happens if the executor sells below market value?
Executors should not sell below market value as they leave themselves open to a claim from the beneficiaries for breach of their duties. If the beneficiaries all agree in writing then it can be sold at undervalue.
Can an executor buy the house?
An executor should not normally buy a house from the estate as it is considered to be a conflict of interest, however there is no legal prohibition on it. But the executor should be able to demonstrate that he is paying the market price and that he has not induced the estate to sell it to him on favourable terms by abusing his position.
Can a house be sold before probate is granted UK?
It can be sold in principle but you won't be able to exchange/complete until you can prove the executor is entitled to sell which is what the Grant of Probate does.
Can you exchange contracts before probate?
You won't be able to exchange/complete until you can prove the executor is entitled to sell which is what the Grant of Probate does.
How long does it take for probate to be granted in UK?
In the past about 4 weeks, but there has been a delay due to changes at the Probate Registries so it could be more like several months. However, that's just the process of having submitted the forms to the Registry and any necessary payment and waiting for the Grant of Probate. What often takes time is working out all the assets, liabilities, valuations etc and having to go through the deceased's personal effects, especially if you didn't know much about their personal life/finances during their life.
Will banks release money without probate?
Normally banks/building societies will release funds held if they are less than £5,000 without seeing a Grant of Probate, higher than that and you will need to supply it.
Can I clear a house before probate?
Yes, if you are likely to be an executor and provided the rest of the family has no problem with you disposing of the deceased's possessions.
How do I remove a sibling from my deceased parents house?
This can be tricky, especially since they probably consider it their home too. Ultimately, if persuasion and negotiations do not work, you will need to go to court to obtain an order for them to leave.
Can I open an executor's account before probate?
It is unlikely a bank will do this without seeing the Grant of Probate.
How do you value a house for probate?
Get an estate agent and tell them what the purpose of the valuation is. You'd probably want to use them to sell it in most cases