Probate and property often go hand in hand. However, probate, though essential, can often be a lengthy process that’s difficult to understand. That being said, knowing what you can and can’t do in terms of buying and selling probate property is essential to staying in line with the many laws and legalities involved.
Whether you're a concerned executor trying to figure out the legalities of selling a property during probate applicationand process or a potential buyer with questions about probate properties, in this guide we're going to break down the nuances of buying or selling property in a probate estate.
What Is Probate?
Probate is the way we ensure a person’s assets, including property, are distributed according to their wishes after they die (if they left a will) or according to the law (if they die without a will).
For example, if someone owns a house or a commercial property, it’s likely they will detail who they want to inherit the property to in their will. If they don’t, the rules of intestacy decide who inherits property and other assets.
While the probate process doesn’t deal solely with property, questions about selling probate property and buying it often crop up and the probate process can influence property sales, timelines, and legalities.
For potential buyers, it's also valuable to know where properties in probate might stand in this process. For example, property that's at an early stage of probate might not be available for sale until grant of probate is obtained, while one further along could be a viable investment opportunity.
What Is Probate Property?
Probate property is anything that is left behind by a person who dies that has to go through the probate process. It is not always necessary for all of person's property or assets to go through probate. Instead, it depends on other owners and/or beneficiaries, or whether they are placed into a trust or not.
Probate property can include family heirlooms, investments (like stocks and bonds), vehicles, and collectibles. That being said, for the purposes of this article we will define probate property as houses, business premises, or any other real estate.
Selling A Probate Property: The Ins and Outs Explored
Selling a probate property isn’t quite the same as selling a normal property for a number of reasons. Lots of people who are given the task of executing a will are also grieving, or might find the process stressful. This, coupled with the complexities of probate, may make it difficult to understand how to approach the task in hand.
A common question often asked of wills, trust and probate solicitors is: can a property be sold before or during probate?
The answer to this question depends on whether you need to have a Grant of Probate to take action on a property.
Selling A Property Without Grant of Probate
You typically do not need a grant of probate to sell a property in the following situations:
Joint Ownership: If the property is jointly owned and the owner is still alive (such as a surviving spouse or civil partner), you can usually sell the property without grant of probate as ownership automatically transfers to the surviving owner.
Survivorship Clause: This is a clause in a will that makes a gift to a beneficiary conditional upon them surviving the testator by a set period of time. Survivorship clauses are most frequently used to stop a property, or estate, from passing through probate twice in quick succession.
Property In Trust: Sometimes, if a person has set up a trust for a property, the trustee (in some cases) may be able to sell the property without probate.
Small Estates: In the UK, if the value of the deceased’s estate, including the property, is below a certain threshold, you might not need grant of probate to sell the property. Instead, you can use a simplified process called the small estates procedure. Having said that, there are no specific rules as to what makes an estate ‘small’. Rather, different banks and financial institutions have their own thresholds which can range anywhere from £5,000 to £50,000.
It is important to note that the specifics can vary depending on individual circumstances. If you’re considering selling a property in probate, it’s advisable to consult with a property or wills, trust and probate solicitor to be sure if you need a grant of probate to do so. They will provide guidance tailored to your situation and assist in a smooth property sale process.
Selling A Property With Grant of Probate
You typically need a grant of probate to sell a property in the following situations:
Sole Ownership: If the deceased owned the property solely in their name, a grant of probate is usually required to legally transfer the property's ownership to the beneficiaries or to sell it. This grant proves the executor's authority to act on behalf of the deceased's estate.
Complex Estates: In cases where the estate is complex, involving multiple assets, beneficiaries, or outstanding debts, obtaining a grant of probate is typically necessary. It helps ensure that all legal and financial aspects are appropriately addressed during the property sale.
Probate Disputes: If there are any legal uncertainties or disputes surrounding the property, including questions about the validity of the will or conflicting claims to the property, a grant of probate is often required to resolve these issues before selling the property.
Mortgages and Liabilities: If the deceased had a mortgage on the property or outstanding debts, the grant of probate may be needed to settle these financial matters before the property can be sold.
Third-Party Requirements: Some banks, financial institutions, or property buyers may request a grant of probate as part of their due diligence process when dealing with a deceased person's property.
As a general rule, grant of probate is required in order for beneficiaries or executors to obtain the authority to sell any assets, including property. How long grant of probate takes relies on many factors, including the complexity of the estate, the presence of probate disputes and any current delays in the system already. Once Grant of Probate has been given a property can then be sold, either by the new rightful owner or the executor of the Will.
Key Considerations When Selling A Probate Property
When selling a probate property, many people want to do so quickly while ensuring it sells for the best possible value. With that in mind, here are 5 essential considerations you must keep in mind when selling a probate property:
Grant of Probate Requirements
Before you can proceed with the sale of a probate property, you need to have the legal authority to do so. It’s essential to discern whether a Grant of Probate is necessary for you to legally sell it.
Property Condition
The condition of a property can significantly impact how long it takes to sell, if it sells at all, and its value. Carefully consider if there are any maintenance issues or repairs that need seeing to before listing it for sale. Minor renovations or improvements are likely to help the property sell for more, and more quickly.
Is The Price Right?
Current market conditions and average property prices can vary widely for a lot of reasons. Be sure to research the market, or enlist the help of an estate agent. Quick sale of a property hinges on competitive but realistic asking prices.
Vacant Property Insurance
If a property is empty for more than 30 days, you may need to take out vacant property insurance. This kind of insurance provides the necessary coverage to safeguard the property and its value while it's empty.
Buying A Probate Property: Everything You Need To Know
There are several compelling reasons why someone might consider buying a probate property. Often they are priced competitively, sometimes below market value, to sell quickly. This makes them attractive investments with potential for significant appreciation in value, especially if they are located in a desirable area for either buyers or renters.
That being said, there are also potential drawbacks to buying probate property. Timelines can be unpredictable due to the probate process, or there might be limited information about the property’s history, condition or maintenance. Further to this, it’s not uncommon for probate properties to be sold “as is”. As such, they might have problems which need to be dealt with, such as repairs.
The Process of Buying A Probate Property
Due Diligence and Research
If and when you do identify a suitable probate property for sale, it’s highly recommended that you do your research and due diligence, like attending a viewing to assess the condition of the property, conducting a title search to ensure there are no outstanding disputes or legal issues that could affect the property’s ownership or your ability to use it.
As far as possible, it’s also recommended to get as much information about the property’s history as possible including maintenance records and any past legal or financial issues. It may also be wise to get a building survey done and undertake addition checks on a properties gas, water and electrical systems.
Budgeting
Alongside how you will finance the purchase itself (i.e. by getting a mortgage or using personal funds), make sure you factor repair or renovation costs into your budget. Having a good idea of the financial commitment you might be making will help you make an informed decision whether to move forward or not.
Making An Offer
When you make an offer on a probate property, you submit this to the executor of the Will or beneficiaries. During this stage, there might be room for negotiation, depending on the situation of the seller and how quickly they are looking to sell the property.
Probate Process
Sometimes the sale of a probate property may require court approval, or cannot move forward until Grant of Probate is obtained. The role of the court in this process is often to make sure the sale of the property is in the best interests of the estate and beneficiaries, or ensure inheritance of the property is in accordance with the Will or the rules of Intestacy.
How long this takes can vary depending on complexity, however in some cases the probate process can take upwards of 12 weeks.
Taking Possession
Once all conditions are met, and court approval (if needed) is obtained, the property’s title will be transferred to your name and any closing costs will be paid, including solicitors fees, taxes, and agent commissions. You will then be free to take possession of the property and do what you will of it.
Much like selling a probate property, buying one can involve legal complexities and frustrating delays. It’s always advisable to work with professionals, including property solicitors, estate agents, surveyors and valuers who are experienced in probate property matters.
Get Legal Help With Probate Property
Whether you are a buyer or seller of probate property, if you need any support throughout the process, Lawhive is here for you every step of the way. In just 5 minutes, we can help you find and get a quote from the UK’s most trusted solicitors and (in most cases) get you working with them the next day. To get started, simply tell us about your case and we will take care of the rest.