The simple answer is that an executor can sell a house before probate is granted in Northern Ireland — they can usually begin preparing and marketing a property before the Grant of Probate is issued. They may also be able to accept an
offer or agree to a sale subject to probate. However, the sale will not normally be able to be completed until the Grant has been obtained.
offer or agree to a sale subject to probate. However, the sale will not normally be able to be completed until the Grant has been obtained.This distinction is important. Families are often worried that a house must sit untouched for months while the probate application is dealt with. That is not necessarily the case. A considerable amount of work can often be completed while the application is progressing.
However, care is needed before entering into a legally binding contract, particularly where there is no Will, the beneficiaries disagree, or the identity of the person entitled to administer the estate is uncertain.
What is a Grant of Probate?
Where someone has left a valid Will, the people appointed to deal with their estate are called the executors.
A Grant of Probate is the formal court document confirming the executors’ authority to deal with the deceased person’s assets. Where the estate includes a house registered in the deceased person’s sole name, the Grant will normally be required before ownership can be transferred to a purchaser.
Northern Ireland Land Registry guidance requires a Grant of Probate or Letters of Administration to be produced when property belonging to a deceased registered owner is being dealt with.
It is worth checking at the outset how the property was owned. Where a house was owned jointly, the deceased person’s interest may pass automatically to the surviving joint owner. Where it was owned as tenants in common, however, the deceased person’s share will normally form part of their estate.
What can an executor do before probate is granted in Northern Ireland?
An executor does not have to wait for the Grant before taking every step connected with the property.
Before probate is issued, an executor can usually:
- secure the property;
- locate the title deeds and other ownership documents;
- notify the house insurer of the death;
- arrange appropriate insurance for an empty property;
- obtain property valuations;
- clear, clean and prepare the house for sale;
- instruct an estate agent;
- place the property on the market;
- arrange viewings;
- obtain information about the mortgage, rates and utilities;
- begin the conveyancing process; and
- apply for the Grant of Probate.
An executor’s authority arises from the Will, although the Grant is normally required as formal proof that the executor is entitled to deal with and transfer the deceased’s property. Official land registration guidance describes the executor as gaining title on death but requiring probate before a transfer will be accepted for registration.
Executors should nevertheless act cautiously. They must preserve the estate, keep proper records and avoid taking steps that could unnecessarily expose the estate to expense or liability.
Can the house be marketed before probate?
Yes. A house can normally be placed on the market before the Grant of Probate has been issued.
In fact, beginning the marketing process early can prevent unnecessary delay. By the time a buyer has been found, surveys have been completed, title documents have been reviewed, and the purchaser’s mortgage has been arranged, the Grant may already have been issued.
The estate agent should be told that the property forms part of a deceased person’s estate and that completion will depend upon probate being obtained.
The likely timescale should also be explained to potential purchasers. A buyer who must move by a fixed date may be unwilling to wait indefinitely for the Grant.
Can an executor accept an offer before probate?
An executor can usually consider and accept an offer before probate has been granted.
However, accepting an offer through the estate agent is not normally the same as entering into a binding legal contract. The sale should be clearly described as being subject to contract and subject to the Grant of Probate being obtained.
The executor should also take reasonable steps to establish that the proposed sale price represents proper market value. This will normally involve obtaining one or more professional valuations and properly exposing the property to the market.
Executors must act for the estate as a whole. They should not sell a property cheaply simply to achieve a quick sale or to benefit one particular family member.
Can a contract be signed before the Grant of Probate?
A contract can sometimes be prepared or even signed before the Grant is issued, particularly where there is a valid Will, and the executors are clearly identified.
However, this must be approached carefully.
A purchaser will usually require satisfactory evidence that the person selling the property has authority to do so. The contract may therefore need to contain a condition making completion dependent upon the Grant of Probate being produced.
Many solicitors will advise against committing the estate to an unconditional completion date before the Grant has been received. Probate applications can be delayed for reasons outside the executor’s control, including:
- queries raised by the Probate Office;
- missing or damaged Wills;
- questions over the validity of the Will;
- difficulties identifying executors or beneficiaries;
- Inheritance Tax issues;
- disputes or caveats; and
- problems obtaining information about the estate.
If a binding contract is entered into and the estate cannot complete on time, the estate could potentially face a claim from the purchaser.
In practice, it is often safer to progress the legal work as far as possible while making it clear that exchange or completion depends upon the Grant.
Who signs the contract and transfer?
The sale documents are signed by the personal representatives dealing with the estate.
Where there is a Will, this will normally be the executor or executors who are applying for, or have obtained, the Grant of Probate.
Where the Grant has been issued jointly to several executors, the acting executors named in the Grant will normally sign the contract and transfer documentation. If only one executor has taken the Grant, that executor may be able to sign alone, depending upon the circumstances and the terms of the Grant.
The beneficiaries do not ordinarily sign the transfer simply because they are entitled to inherit from the estate. Until the property is formally transferred or assented to by them, responsibility for dealing with it remains with the personal representatives.
There may be exceptions where a beneficiary is also a registered owner, where the property was jointly owned or where a deed of variation or other family arrangement is involved.
What happens if there is no Will?
Where someone dies without leaving a valid Will, they are said to have died intestate.
There is no executor. Instead, an eligible relative must apply for a Grant of Letters of Administration. Once the Grant is issued, that person becomes the administrator of the estate. The law determines both who is entitled to apply and who will inherit the estate.
This creates an important difference.
An executor is appointed by the Will. A proposed administrator does not normally have formal authority to administer the estate until the Grant of Letters of Administration has been issued.
It may still be possible to:
- secure and ensure the house;
- obtain valuations;
- instruct an estate agent;
- market the property; and
- accept an offer subject to the administration being granted.
However, it is generally more dangerous for a proposed administrator to sign a binding contract before the Grant has been obtained. Until then, there may be uncertainty about who is entitled to act.
The proposed sale should be clearly described as being subject to Letters of Administration.
What expenses must be paid while waiting for probate?
The property must continue to be protected while the probate application is being dealt with.
House insurance
The insurer should be notified of the death immediately.
Ordinary household insurance may not continue on the same terms once the policyholder has died or the property has become vacant. The insurer may impose conditions requiring:
- regular inspections;
- the water supply to be turned off;
- heating to remain on during cold weather;
- valuables to be removed;
- doors and windows to be secured; or
- vacant-property insurance to be arranged.
Executors should not assume that the existing policy remains effective.
Rates
Land & Property Services should be notified of the death.
Where the deceased was the sole occupier and ratepayer, the personal representative may become responsible for the rates. An exclusion from empty-property rates may be available where the property is empty, unfurnished and not being used for storage.
Whether an exclusion applies will depend upon the particular circumstances, so the position should be checked rather than assumed.
Mortgage payments
If the property is mortgaged, the lender should be notified.
Interest will usually continue to accrue. The lender may agree to suspend ordinary payments temporarily, but this will depend upon its own policies and the circumstances of the estate.
Executors should also check whether there was any life insurance or mortgage protection policy that may repay some or all of the borrowing.
Utilities
Electricity, heating and water may need to remain connected to protect the property and allow viewings to take place.
Meter readings should be taken and utility providers notified. Non-essential services can often be cancelled, but care should be taken not to disconnect anything required to maintain, heat or secure the house.
The estate is responsible for reasonable payments required to protect its assets. Official Northern Ireland guidance specifically identifies mortgage payments, house insurance and other protective expenses as costs that may have to be paid during the administration.
If a family member pays these expenses personally, they should keep invoices, receipts and proof of payment so that they can seek reimbursement from the estate.
What happens if the beneficiaries disagree about selling?
Disagreement between beneficiaries is one of the most common causes of delay.
A beneficiary may:
- want to retain the house;
- believe the asking price is too low;
- demand an immediate sale;
- refuse to leave the property;
- prevent access for valuations or viewings;
- wish to purchase the house personally; or
- disagree with another beneficiary about how the proceeds should be divided.
The executor’s duty is to administer the estate properly and in accordance with the Will. The executor does not simply have to follow whichever beneficiary complains the loudest.
Where a sale is required to pay debts, taxes, expenses or financial gifts under the Will, the executor may have little practical choice but to sell.
Where the estate has enough money to meet its liabilities, it may be possible for one beneficiary to retain the property by purchasing the interests of the others or taking the property as part of their inheritance. This requires proper valuations, agreement on the figures, and carefully drafted documentation.
An executor who is also a beneficiary must keep their different roles separate. They should not use their position as executor to obtain the property at an undervalue or gain an unfair advantage.
Where executors themselves disagree, the administration may become particularly difficult. A court application may ultimately be required to resolve the dispute or replace an executor, although early correspondence or mediation can often avoid that expense.
Should the executor wait for probate before doing anything?
Usually, no.
Waiting until the Grant has been issued before locating the deeds, arranging insurance, obtaining valuations or starting the conveyancing process can add months to the administration.
The better approach is normally to run the probate and property-sale work alongside each other:
- Confirm the Will and the identity of the executors.
- Check how the property is legally owned.
- Secure and ensure the property.
- Obtain a date-of-death valuation.
- Gather details of the estate, debts and tax position.
- Prepare and submit the probate application.
- Market the property, where appropriate.
- Progress the conveyancing while awaiting the Grant.
- Complete the sale once the Grant and the remaining legal documents are available.
This allows time to be used productively without placing the estate under an unsafe contractual obligation.
Why early legal advice can prevent delay
Probate and conveyancing are separate legal processes, but where an estate includes a house, they must work together.
Problems commonly arise where:
- The wrong person begins dealing with the property;
- Not all executors are willing to act;
- The original Will cannot be found;
- The property is jointly owned;
- title deeds are missing;
- The house is unregistered;
- The Will leaves the property to a particular beneficiary;
- The estate does not have enough cash to pay taxes or debts;
- a beneficiary is living in the house;
- the property is sold for less than its proper value; or
- A purchaser is given an unrealistic completion date.
Taking legal advice at the beginning allows these issues to be identified before a buyer is waiting and pressure begins to build.
Speak to J J Taylor & Co Solicitors
At J J Taylor & Co Solicitors, we advise executors and administrators throughout Northern Ireland on Grants of Probate, Letters of Administration and the sale or transfer of property belonging to an estate.
We can deal with the probate application and the conveyancing together, helping to ensure that the property is marketed at the appropriate stage and that the legal work progresses without avoidable delay.
For advice about administering an estate or selling a deceased person’s property, contact our office on 028 3752 5400 or email [email protected].
For further guidance on the probate process in Northern Ireland, the Northern Ireland Courts and Tribunals Service provides official information on applying for a Grant of Probate.
If you need advice about whether an executor can sell a house before probate in Northern Ireland, or about any aspect of estate administration, please contact J.J. Taylor & Co Solicitors. We act for families across Armagh, County Down and County Tyrone.