Probate Sale? Selling a probate property? Acting as an executor in a sale? Want to know if you can sell before probate is granted? Selling a jointly owned property when one owner has died? What are the legal fees on a probate sale? We can help to guide you through the steps required. Fees from £499 plus VAT and disbursements.
Do you need Probate to sell your property?
The first question to ask is do you actually need to go to the expense of obtaining probate. If a loved one has died and a surviving husband, wife or partner wants to sell the property a simple check on the title deeds can usually identify what documents or additional steps are needed to sell the property.
If the property is in joint names and one of the owners is still alive then invariably the property can be sold without the Grant of Probate.
Sale by surviving joint owner – Joint Tenants or Tenants In Common?
-Tenant in Common
If the property title contains a ‘restriction’ below the names of the owners in this format “No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.” then the property appears to be held as tenants in common or otherwise pursuant to a trust. In this case you would need appoint a second trustee (we would do this for you) to receive the sale monies with the surviving partner and sell the Property. The proceeds can then be held by the two trustees pending the Grant of Probate post sale.
– Joint Tenants
If there is no restriction then the property was held as “joint tenants” and so the title automatically passes to the co-owner without the need for probate. All you would be required to provide to us to sell the property is a certified copy of the death certificate.
Death of Sole Owner or last surviving Joint Owner
If the property is held in the deceased’s sole name or, if held in joint names and both owners have died, then Probate or Letters of Administration are needed to sell. Technically the ownership of the property may well pass to the personal representatives immediately on death however anyone buying from an executor or PRs will want proof they are entitled to that role and hence they will require a copy of the Probate or Letters of Administration sealed by the Probate Office.
What is the difference between Probate or Letters of Administration
Probate gives effect to the Will of the deceased and an Executor named in the Will obtains the Grant of Probate.
If there is no valid Will the government rules determine who is to benefit from the estate. These are not straightforward. An Administrator is appointed to deal with this and is usually one of the beneficiaries.
In both cases the Grant of Probate or Letters of Administration give the Executor or Administrator power to deal with the estate and sell the deceased’s assets including any real property – houses or flats. The executors would therefore appoint the lawyers and estate agents on the sale. Once the property is sold (and the other assets are collected) the money from the estate can be distributed to the beneficiaries.
How is a Grant of Probate obtained?
Before the Grant of Probate can be obtained a tax return must be submitted to Revenue and Customs confirming the amount of inheritance tax payable.
The return gives details of the deceased’s assets at the date of death, this includes details of any property (houses or flats) and the value. An application is then made to the Probate Court for the Grant of Probate.
Can we sell before Probate is granted? Do we have to wait for the Grant of Probate or Letters of Administration before placing the property on the market or accepting offers?
If you are selling a jointly owned property where one owner is still living then as noted above you can sell before Probate is granted.
Even where Probate is essential if the application to the Probate Registry is relatively straightforward practically you can run the sale at the same time as the application for the grant. Both the conveyancing (sale) process and probate take around the same period of time – usually 4-6 weeks on average. Clearly you cannot exchange until the Grant is obtained but in the current market as sales can take time we would recommend the marketing of the property for sale at the earliest opportunity. If a buyer is found we would issue contracts and supporting documents to allow the buyer to progress the searches and deal with the enquiry process. This means the transaction will take a shorter period of time overall.
Where the estate is liable to pay inheritance tax or it is a more complex application and or there are complications you may wish to progress the Probate aspect first before the sale because the Probate process can take much longer and the delay in obtaining these documents could frustrate any potential buyer.
It is of course advisable to obtain Probate at the earliest opportunity to avoid any potential delays whatever the situation – where things are urgent we have obtained for Probate for clients in a couple of weeks when a sale has been agreed. We can often do this for a fixed cost on straightforward matters where there is no inheritance tax to pay (from £450 plus VAT). The cost of obtaining the Grant is paid for from the sale of the property so there is no need to pay this up front from your own resources.
It might be worth calling us to discuss the estimated timescales for obtaining probate before progressing too far in the transaction.
Where there is no Will and you need to obtain Letters of Administration there is no power for the Administrators to deal with the assets, including marketing the property, before the actual Letters of Administration have been granted. In practice however estate agents will not check this distinction between Probate and Letters of Administration and will happily market the property for you if you ask.
What are the legal costs charged to sell a probate property?
The legal costs for selling a probate property should not differ from a usual sale.
As a specialist firm dealing with probate sales we can offer a fixed fee sale price of freehold/leasehold properties up to a maximum sale price of £500,0000.
We charge from £499 plus VAT, £6 for office copies of the title and £30 plus VAT for bank transfers (only required if there is a mortgage to repay – so invariably with probate property this is not required).
For a leasehold property we charge from £599 plus VAT. The disbursements will be higher on a leasehold property becuase of the need to obtain management information from the Landlord and Management company. They will invariably charge for this. Budget for £100-200 for this cost. In some cases it can be more.
If you wish to proceed with this offer email Mark Sadler on email@example.com with details of your name and address and that of the property and we will send you the paperwork necessary to progress with the sale.
We can of course deal with the sale of property anywhere in England and Wales.
What other costs are anticipated?
The estate agents fees – these can vary considerably from between 1% – 2.5% on average but this depends on the type of agency agreement (sole or multiple) and the area in which you are selling. Some internet agents offer lower rates. If you sell privately then this fee will not be paid.
We may be able to advise you on how to negotiate these fees (we can advise on special fee rates for some local agents). We would also recommend obtaining at least 3 agents valuations (which should be free) before deciding on appointment of the agent or before setting the sale price. You may have a duty to the beneficiaries to ensure that you get the right price for the assets of the estate so obtaining a few valuations will assist you in that role. If it is a complex or unique property (for example a flat with a short lease*) you may want to consider a specialist paid valuation.
You may also need to pay for clearance of the property unless the buyer is willing to take the property “as seen”.
* short leases can also be tackled in other ways such as service of a section 42 Notice on the Landlord but this must be served within 2 years of the grant of probate. Again this is an area which we can advise on (see below).
What documents do you need to deal with the sale of a probate property?
To prove your ability to sell we will simply require the original or an official copy of the Probate or Letters of Administration plus the usual identification documents from the executors e.g. passport and utility bill.
The executors or administrators of the estate are the parties who will be required to enter into the contract to sell the property and complete the enquiry forms. The information you have on the property may be limited but most buyers will want some replies to basic enquiries although they will understand that your knowledge as executors may be restricted.
Are there any hidden additional charges because you are dealing with a probate sale.
No. Even though there may be additional steps to take we do not charge extra for dealing with a probate sale.
Our guide to Unknown Costs and Limitations will give you an idea on what other possible costs or expenses to budget for.
We used another solicitor to obtain the Probate or Letters of Administration – do we need to use them for the sale also?
Again the answer is no. As they have a ‘captive audience’ they may try and charge you a higher price for dealing with the sale. Our prices are published on-line and are transparent. You may find that by instructing another solicitor on the sale you will get better value for the estate.
What if the Sale Price is lower than the Probate Valuation – can I reclaim any of the Inheritance Tax paid?
For the purposes of Probate the property’s value is based upon the open market value of the property in a sale by a willing seller to a willing buyer. Often this is based on the average of a number of estate agents valuations. If, within 4 years of the date of death, the property is sold for less than the value in the inheritance tax return a claim can be made to the Revenue for a refund of the tax paid.
What if the Sale Price is higher that the Probate Valuation – can the Revenue ask for more tax?
If the property is sold for considerably more than the value given in the tax return shortly after the date of death the District Valuer will consider the valuation given and if they believe that the value is too low the will ask for justification for the differential in the prices. This may be based on the valuation evidence provided by the agents on the state of the market or due to the fact the executors have made improvements to the property at their own cost to facilitate the sale. If the District Valuer is not satisfied the tax may increase.
Again we can advise on mitigation of that tax rise – perhaps by looking at ways with your accountants to use the executors personal CGT allowances unless they have been used up by other gains in that financial year.
What if I am selling a Probate Property with a short lease – can I extend it as an executor?
It is possible for the executors to serve a Notice of Claim to extend a lease in accordance with the statutory procedure contained in the Leasehold Reform, Housing and Urban Development Act 1993.
However please note executors only have a period of 2 years from the date of the Grant of Probate to do this.
This is on the assumption the flat is residential and the deceased had himself owned the property for 2 years and all other statutory qualifications had been met.
The executors have two course of action – they could extend the lease themselves or more likely sell the property with the benefit of a Notice of Claim which could then be assigned (transferred) to the buyer on sale. This would avoid the buyer having to wait 2 years before extending the lease themselves. This may make the flat easier to sell. Please note this is not part of our standard sale charge although we would be happy to provided you with a fixed fee quote for this.
What areas of the country do you cover?
We provide a specialist service for probate conveyancing in all of England and Wales
A solicitor you can trust – with you every step of the way
Remember we do not use unqualified case handlers – a qualified solicitor will deal with your matter from start to finish. Our lawyers will be dedicated to your case and help you all the way.
We are a member of the Law Society Conveyancing Quality Scheme (CQS).
What happens to the cost if things don’t go to plan?
Remember if the process drags on, kenneth elliott + rowe will not hit you with additional charges. Our price is fixed.
Want more information?
Simply call us 01708 757575 and ask for Mark Sadler, Fred Rylah, David Farr or Keith Darvill or email firstname.lastname@example.org
We are all solicitors experienced with Probate Sales.