Can an executor sell a property before probate is granted?
When someone dies leaving a property, the family may consider selling a property before probate is granted, for example, to pay inheritance tax, settle debts, or distribute the estate to beneficiaries. A common question is whether an executor can put the property on the market, accept an offer, or even complete the sale before Probate has been granted.
What is Probate?
Probate is the legal and financial process of administering a person's estate after they pass away, and probate solicitors are often instructed to manage it. It involves proving the validity of a will (if one exists), valuing the deceased's assets, paying any outstanding debts and taxes, and distributing the remaining property to the rightful beneficiaries.
Where there is a will, the court issues a Grant of Probate. This document allows the executor(s) to deal formally with the deceased’s assets, including property, bank accounts and investments.
Can an executor sell the deceased’s property before probate is granted?
Generally, it is not possible to sell a property before Probate is granted. This is because the Probate proves the executors’ authority to transfer the property to the buyer. The Land Registry will also usually require evidence of the executors’ authority when registering the buyer as the new owner.
However, it may be legally possible in some circumstances for executors to exchange contracts on the sale of the property before the Grant of Probate is issued.
How can I exchange contracts before probate is granted?
Although it may be legally possible in some circumstances for executors to enter into a contract before the Grant of Probate is issued, it is generally advised to approach this with caution and seek legal advice before exploring this option. The governing principle is stated by Newey J in Goodman v Goodman [2014] Ch 186 that “an executor derives title from the will, and the property of the deceased vests in him from the moment of the testator's death”. This classic rule was also confirmed by the Privy Council in Chetty v Chetty [1916] 1 AC 603 that the grant confirms, rather than creates, the executor's title.
The executor will be able to enter into a conditional contract with the buyer with completion conditional upon the Grant of Probate. This allows the executor and buyer to enter into a binding agreement but makes the obligation to complete conditional upon the Grant of Probate being issued by an agreed deadline, often called a longstop date.
Therefore, it is important that there is no fixed date for completion of the contract, but a longstop date within which if Probate is not issued, the executor will be able to withdraw from the contract without any penalty.
Benefits for executors and the estate
A conditional contract subject to Probate offers the executor several benefits such as, securing a buyer early, preserving the agreed sale price, reducing delay in the estate administration, and certainty for the beneficiaries.
Need help selling a probate property?
Probate property sales require careful coordination between estate administration and conveyancing. Our specialist probate solicitors and residential property team can assist executors, beneficiaries and buyers with the legal process for selling or purchasing a probate property, including transactions where completion is conditional upon the Grant of Probate being issued.
