Exchanging on a property with no grant of probate

When buying or selling a property as part of an estate administration, a common query is whether contracts can be exchanged before a Grant of Probate has been issued.

While many assume that probate must be finalized before any steps can be taken, the position is more flexible in practice.

In certain circumstances, it is possible to exchange contracts ahead of the Grant being obtained, but doing so requires careful drafting, clear conditions within the contract, and a full understanding of the risks involved.

Exchanging Contracts Before a Grant of Probate: Is It Possible?

In short, it is permitted in certain circumstances.

The authority of the Executors to deal with the property comes from the Will and then is confirmed by the Grant of Probate.

Where there is no Will, or valid appointment of Executors, then the authority comes from the Grant itself.

However, there are important factors to consider, such as:

● Although contracts can be exchanged before the Grant of Probate is issued, the Grant is required to register the property at the Land Registry.

○ The contract should therefore be conditional on Probate being granted, with completion set to occur a specified number of days after the Grant is received.

● As with any conditional contract, timing must be carefully considered. Probate can take longer than expected, so a clear longstop date should be included. Buyers must also check mortgage offer and valuation expiry dates.

● If a deposit is paid on exchange, it will remain tied up until completion. Delays may prevent the buyer from progressing other transactions.

● Exchanging subject to Probate is usually unsuitable in a property chain, as a fixed completion date cannot be guaranteed.

In some circumstances, there may be an exemption from some or all of the Stamp Duty Land Tax when a property is purchased from Personal Representatives.

In summary, it is possible to exchange contracts before the Grant of Probate is received, but careful planning is essential.

Talk to Orwins Today About Grant of Probate

If you are dealing with a property sale where a Grant of Probate is required, our experienced legal team at Orwins can guide you through the process and ensure the transaction is structured correctly.

Contact Orwins today for informed advice and action tailored to your circumstances.