"Can property be put on the market prior to probate?"

Can deceased's property be put on the market prior to probate being granted?

Q: Our uncle has been given just weeks to live. Widowed and without children he has left everything to us. As Covid means selling property is currently a lengthy process, we want to put uncle's house up for sale as soon as possible. I know when my parents bought their last house the sale completion was delayed because it transpired the property was still waiting on Letters of Administration. Will we need to wait for probate or could we get it on the market while we are waiting?

A: If your uncle's name is the only name on the title deeds of the property held at HM Land Registry, probate will be required before the property can be sold.

Otherwise, if the property was jointly held with another person, it would pass to the survivor and fall out of the estate of the deceased person altogether.

In theory the property could be marketed before obtaining probate but waiting until probate has been obtained will avoid complications arising during the sale. If there is a Will you should ensure that the executors agree to the same, as they are responsible for making enquiries into the extent of the estate and have a duty to report to the beneficiaries regarding the assets.

There are certain circumstances whereby contracts can be exchanged before probate has been granted, but this needs to be carefully discussed with your solicitor overseeing the sale, as completion cannot take place before probate has been obtained. Selling subject to probate should be discussed with the estate agent involved and the buyer and their solicitor, so that all are fully aware of the time scales and expectations can be managed. Please also note that in a taxable estate, or an estate where a detailed return is required to obtain Grant of Probate or Grant of Letters of Administration, the time taken by HMRC and the probate registry will be significantly longer than in a straightforward estate.

• This question has been answered by Ulia Choudhry, a Solicitor with GHP Legal. If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients. In accordance with government guidelines, some of our lawyers are currently working remotely which means you may not now receive a response as promptly as you may expect. Please kindly bear with us and we will respond as soon as we are able.

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