Probate Conveyancing
Conveyancing When Selling or Buying a Probate Property
When someone dies owning a property, dealing with its sale or transfer can involve additional legal steps before the transaction can be completed.
The conveyancer may need to establish who has authority to deal with the property, check the grant of representation, investigate the title and deal with any mortgage or other matters affecting the property.
At Trusted Conveyancers, we’ve done the hard work, so you don’t have to, helping you find carefully selected conveyancing firms with experience in probate property transactions.
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What Is Probate Conveyancing?
Probate conveyancing is the legal work involved when a property belonging to someone who has died needs to be sold or transferred as part of administering their estate.
The person dealing with the estate is known as the personal representative.
Depending on the circumstances, this may be:
- An executor named in the deceased person’s will
- An administrator where there is no will
- An administrator appointed where there is a will but an executor is unable or unwilling to act
The document giving or confirming the necessary authority is generally referred to as a grant of representation.
This can take different forms. A grant of probate is generally issued where an executor named in a will applies, while letters of administration may be issued where someone dies without a will. Letters of administration with the will annexed can apply in certain cases where there is a will but an executor is not able to act.
Probate property transactions are one of several situations where additional legal work may be required. You can explore our Specialist Conveyancing section for other complex property transactions.
How Is Probate Conveyancing Different?
Selling a property from an estate involves many of the same conveyancing steps as an ordinary property sale, but there are additional considerations.
Standard Property Sale |
Probate Property Sale |
|---|---|
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Seller normally owns and controls the property |
Property forms part of a deceased person’s estate |
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Registered owner signs the sale documentation |
Personal representatives deal with the transaction |
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Seller can usually instruct immediately |
Authority to deal with the estate must be established |
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Property information normally comes directly from the owner |
Executors or administrators may have limited knowledge of the property |
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No probate documentation required |
Grant of representation may be required |
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Sale proceeds belong to the seller |
Sale proceeds form part of the estate |
The exact process depends on how the property was owned, whether there is a will and the wider circumstances of the estate.
Selling a Probate Property
Who Can Deal With the Sale of a Probate Property?
Responsibility for dealing with the estate rests with its personal representatives.
Where there is a valid will, the executors named in it may be entitled to apply for a grant of probate.
Where there is no will, an eligible person will normally need to apply for letters of administration before administering the estate.
It is important to establish who has the necessary authority before progressing with a property transaction.
This is one reason probate conveyancing can require more preliminary legal work than an ordinary sale.
Is Probate Always Required to Deal With a Property?
Not necessarily.
Whether a grant is required can depend partly on how the property was owned.
For example, property owned jointly as joint tenants may pass automatically to the surviving owner rather than passing under the deceased person’s will or intestacy. GOV.UK specifically identifies jointly owned property of this type as a situation in which probate may not be needed for that asset.
Property owned solely by the deceased, or their share of property held as tenants in common, can involve a different position.
Your conveyancer can examine the title and circumstances to establish what is required before the property can be sold or transferred.
What Is a Grant of Representation?
“Grant of representation” is a general term for the court-issued document that allows the appropriate person to deal with the deceased person’s estate.
The most common forms are:
Document |
When It May Apply |
|---|---|
|
Grant of Probate |
Where an executor named in a will applies |
|
Letters of Administration |
Where the deceased did not leave a will |
|
Letters of Administration With Will Annexed |
Certain cases where there is a will but no executor is able to apply |
Once the appropriate grant has been issued, it provides evidence of the personal representative’s authority to deal with estate assets.
Does Inheritance Tax Have to Be Paid Before Probate?
Where Inheritance Tax is due, some tax will normally need to be paid before the grant can be obtained.
Before applying for probate, the estate must be valued and the relevant Inheritance Tax requirements dealt with. GOV.UK states that where full estate details are required, these must be reported to HMRC and any required initial payment started before the probate application can proceed.
This is part of the wider estate administration, rather than ordinary property conveyancing.
Where tax issues are complex, specialist probate or tax advice may be required.
Can You Sell a Property Before Probate Is Granted?
The estate administration and legal preparation for a property transaction can overlap, and a conveyancer may be able to carry out preparatory work while the probate position is being dealt with.
However, the personal representatives need the necessary legal authority to complete a sale of estate property.
Current GOV.UK consumer guidance also advises against putting property on the market until probate has been obtained.
If a sale is being considered while a probate application is outstanding, take advice from the conveyancer dealing with the particular estate before making commitments or agreeing a transaction timetable.
What Conveyancing Work Can Be Started?
There can still be useful preparatory work to do while the estate is being administered.
Depending on the circumstances, the conveyancer may be able to:
- Examine the property’s registered title
- Establish how the property was owned
- Identify mortgages or other registered charges
- Gather relevant property documentation
- Investigate title issues
- Consider leasehold documentation
- Prepare appropriate sale documentation
- Identify matters that may need resolving before a future sale
Starting the legal preparation early can be particularly useful if the property has title problems or missing documentation.
What Does a Probate Conveyancer Do?
When an estate property is being sold, the conveyancer will normally establish the authority of the personal representatives and deal with the legal work required for the property transaction.
This can include:
1. Checking the Property Title
The conveyancer establishes the registered ownership and checks for mortgages, restrictions and other matters affecting the title.
2. Checking the Personal Representatives
They establish who has authority to deal with the property and review the relevant probate documentation.
3. Preparing the Sale Documentation
The contract and supporting legal documents are prepared for the buyer’s conveyancer.
4. Responding to Enquiries
The buyer’s conveyancer may raise questions about the property and title.
5. Dealing With a Mortgage
If a mortgage remains secured against the property, the conveyancer will establish what is required to repay it from the sale where appropriate.
6. Exchange and Completion
Once the legal requirements are satisfied and the personal representatives are able to proceed, contracts can be exchanged and the transaction completed.
7. Accounting for the Sale Proceeds
The net sale proceeds are dealt with in accordance with the conveyancer’s instructions and the requirements of the estate administration.
Many of the usual legal stages of a property sale still apply. Our Selling a House Conveyancing guide explains the standard sale process in more detail.
What Information Do Executors Need to Provide?
Executors or administrators may be asked for information and documents relating to both the estate and the property.
These can include:
- Death certificate
- Will, where applicable
- Grant of probate or letters of administration
- Identification for the personal representatives
- Property title information
- Mortgage details
- Lease documents
- Guarantees or certificates relating to work at the property
- Planning or building regulation documents
- Information about occupiers or tenants
- Relevant correspondence concerning the property
The precise requirements will depend on the transaction.
What if the Executors Know Very Little About the Property?
This is relatively common.
An executor may never have lived in the property and may know little about alterations, boundaries, services, disputes or work carried out by the deceased owner.
That means they may not be able to answer property enquiries with the same level of knowledge as an owner selling their own home.
They should not guess or provide information they cannot verify.
The conveyancer can advise how enquiries should be answered where the personal representatives have limited knowledge of the property.
What if There Is More Than One Executor?
It is common for a will to appoint more than one executor.
Where several personal representatives are acting, the conveyancer will need to establish who is proving the will and who has authority to deal with the transaction.
This can affect the documentation and signatures required during the sale.
If one executor does not wish to take an active role, or there is disagreement between personal representatives, specialist probate advice may be required before the property transaction can proceed.
What if There Is No Will?
When someone dies without a valid will, they are said to have died intestate.
Instead of an executor obtaining a grant of probate, an eligible person will normally apply for letters of administration.
GOV.UK states that where there is no will, eligibility to apply is determined under the intestacy rules, with the closest living relative potentially able to apply.
Once the appropriate authority has been obtained, the administrator can deal with estate assets in accordance with the applicable rules.
What Happens if the Property Has a Mortgage?
A mortgage does not automatically disappear when the borrower dies.
The mortgage lender should be informed, and the estate’s representatives need to establish the outstanding balance and the lender’s requirements.
GOV.UK advises personal representatives to ask the mortgage lender whether payments need to continue while probate is being dealt with.
If the property is subsequently sold, the conveyancer will normally obtain a redemption figure and arrange for the mortgage to be repaid from the sale proceeds where appropriate.
What if the Probate Property Is Leasehold?
Selling a leasehold property can involve additional work regardless of whether probate is involved.
The conveyancer may need to deal with:
- The lease
- Ground rent
- Service charges
- Management company information
- Freeholder or managing agent requirements
- Restrictions on the title
- Notices required following the transaction
- Outstanding sums affecting the property
Obtaining management information can take time, so it is sensible to identify the leasehold requirements early.
For a more detailed explanation of the additional legal work involved in a leasehold sale, see our Selling a Flat Conveyancing guide.
What if the Probate Property Is Unregistered?
A probate property can be unregistered in the same way as any other property. This may be more commonly encountered with properties that have remained in the same ownership for many years.
This does not necessarily prevent a sale, but the conveyancing can be more involved.
The conveyancer may need to examine the original title deeds and historical ownership documents to establish the seller’s title and determine how the property should be dealt with.
For a more detailed explanation of how these transactions work, see our Unregistered Property Conveyancing guide.
What if the Title Deeds Cannot Be Found?
Missing title deeds can create additional work, particularly where the property is unregistered.
The conveyancer will need to investigate what evidence of ownership is available and determine what HM Land Registry or the buyer’s conveyancer may require.
Depending on the circumstances, additional evidence, statements or other legal steps may be necessary.
Missing deeds do not automatically make a property impossible to sell, but they should be raised with the conveyancer as early as possible.
What if Someone Is Still Living in the Property?
The personal representatives need to make the conveyancer aware if anyone remains living at the property.
This might include:
- A beneficiary
- Family member
- Tenant
- Lodger
- Other occupier
The legal position can vary considerably depending on why the person occupies the property and what rights they may have.
Do not assume that an occupier can simply be required to leave because the registered owner has died.
The conveyancer may recommend obtaining additional legal advice before agreeing a sale with vacant possession.
Can a Tenanted Probate Property Be Sold?
Potentially, yes.
Where the deceased owned a rental property, the tenancy does not simply disappear because the landlord has died.
The personal representatives need to establish the tenancy arrangements and decide, with appropriate advice, how the property will be dealt with as part of the estate.
A sale might ultimately take place with the tenant remaining in occupation or after the tenancy has lawfully ended, depending on the circumstances.
The tenancy documents should be provided to the conveyancer at an early stage.
What Happens to the Property While Probate Is Being Dealt With?
The personal representatives are responsible for managing estate assets during the administration period.
For a property, practical matters can include:
- Buildings insurance
- Mortgage payments
- Council tax
- Utilities
- Security
- Maintenance
- Tenants and rental income
- Preventing deterioration of an empty property
Insurers should be told when a property becomes empty, as the terms of cover may change.
These practical matters are separate from the conveyancing itself but can become important if obtaining probate or completing the estate administration takes time.
Is There Tax to Pay When a Probate Property Is Sold?
Potentially.
The tax position depends on the circumstances of the estate and what happens to the property’s value.
For example, Capital Gains Tax may become relevant if estate property is sold for more than the relevant value used following the death. GOV.UK confirms that an estate can potentially have Capital Gains Tax to pay when property increases in value before it is sold.
This is different from Inheritance Tax.
A conveyancer can deal with the property transaction, but executors may need separate probate, accounting or tax advice about the estate’s liabilities.
Can the Property Be Transferred to a Beneficiary Instead of Sold?
Potentially, yes.
An estate does not always have to sell a property. Depending on the will, intestacy position, estate liabilities and agreement between those involved, property may instead be transferred to a beneficiary.
The personal representatives must first ensure that the estate can meet its debts, taxes and other obligations.
GOV.UK notes that estate assets can be transferred directly to beneficiaries and that different tax considerations can apply compared with selling them.
Where several beneficiaries are involved or one beneficiary wishes to retain the property while others receive money, additional legal and tax considerations may arise.
How Much Does Probate Conveyancing Cost?
The conveyancing cost will depend on the work involved.
A straightforward registered freehold property will generally involve less legal work than a transaction involving:
- Unregistered title
- Missing deeds
- Leasehold property
- Multiple personal representatives
- Title defects
- Tenants or occupiers
- Missing property documentation
- Complex restrictions
- Additional estate-related legal issues
It is also important to distinguish between probate fees and property conveyancing fees.
A solicitor dealing with the administration of the entire estate may charge separately from the conveyancing work involved in selling or transferring the property.
Ask for a clear quote explaining exactly what is included.
How Can Executors Prepare for a Probate Property Sale?
Good preparation can make the eventual conveyancing considerably easier.
Executors or administrators should gather as much relevant information as possible, including:
- The will
- Probate documentation
- Property title information
- Mortgage details
- Lease documentation
- Planning and building regulation documents
- Guarantees and certificates
- Tenancy agreements
- Information about occupiers
- Details of alterations
- Relevant correspondence concerning the property
Do not worry if everything cannot be found.
Tell the conveyancer what is missing rather than attempting to fill gaps with information that cannot be verified.
Buying a Probate Property
Is Buying a Probate Property Different?
From a buyer’s perspective, much of the conveyancing process is similar to buying any other property.
Your conveyancer will investigate the title, searches, contract and other legal documentation in the usual way.
The difference is that the seller is acting as the personal representative of someone who has died.
This can affect the information available about the property and, depending on the circumstances, the transaction timetable.
Should Buyers Have a Survey on a Probate Property?
The conveyancer deals with the legal aspects of the purchase rather than the physical condition of the building.
Where a property has been empty, poorly maintained or the executors have limited knowledge of its condition, a suitable survey may be particularly useful.
A surveyor can assess the physical condition of the property and identify defects that would not normally be revealed by conveyancing searches or title documents.
How Long Does Probate Conveyancing Take?
There is no single timescale.
The conveyancing itself may progress similarly to an ordinary property transaction once the personal representatives have the necessary authority and documentation.
However, the wider estate administration can affect when the property is ready to be dealt with.
Current GOV.UK guidance says a grant of probate or letters of administration will usually be issued within 12 weeks of submitting the application, but it can take longer where additional information is required. That period starts from the probate application, not from the person’s death, and work required before the application can add further time.
For that reason, it would be misleading to give a fixed overall timescale for selling a probate property.
What Can Delay a Probate Property Sale?
Several issues can make the transaction take longer.
Possible Delay |
Why It Can Cause Problems |
|---|---|
|
Probate Application Outstanding |
Necessary authority or documentation may not yet be available |
|
Probate Registry Queries |
Additional information may be required before a grant is issued |
|
Inheritance Tax Matters |
Estate valuation and tax requirements may need dealing with |
|
Missing Will or Documents |
The estate position may need further investigation |
|
Multiple Personal Representatives |
Documents and decisions may require coordination |
|
Missing Property Paperwork |
The conveyancer may need to investigate alternatives |
|
Leasehold Property |
Management information may take time to obtain |
|
Occupiers or Tenants |
Their legal position may need to be established |
Identifying these issues early can reduce avoidable delays later in the transaction.
Probate Conveyancing: Quick Answers
Why Choosing the Right Probate Conveyancer Matters
Probate property transactions can involve issues that do not arise in an ordinary sale.
The conveyancer may need to establish the authority of the personal representatives, examine probate documentation, deal with limited information about the property and resolve title, mortgage or leasehold issues before the transaction can complete.
At Trusted Conveyancers, we’ve done the hard work, so you don’t have to. Rather than spending hours comparing firms yourself, we’ve carefully assessed the conveyancing firms we recommend based on communication, service standards, transparency and professionalism, so you can choose with confidence.
Probate Property Experience
A conveyancer familiar with probate property transactions will understand the additional documentation and legal considerations involved.
Title
Experience
Probate properties that have remained in the same ownership for many years can sometimes involve missing documentation or unregistered title that requires additional investigation.
Clear
Communication
Executors may already be dealing with numerous aspects of an estate. Clear communication helps everyone understand what is required and what happens next.
Carefully Selected Firms
Every conveyancer we recommend is assessed against our selection criteria before being included.
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