What steps should I take to sell a property before probate is granted?

Selling a property before probate is granted usually involves agreeing the sale in principle, making the contract conditional on the required authority, and completing only when the estate’s legal representative can give the buyer good title. The exact process depends on the ownership structure, the jurisdiction involved and the requirements of the buyer’s conveyancer, so the executor or proposed personal representative should obtain estate solicitor’s advice before committing to a sale.

1. Establish whether probate is actually required

Check how the property was owned. A property held solely in the deceased’s name will normally require the personal representative to obtain the appropriate grant before completion. A jointly owned property may pass automatically to the surviving joint owner, depending on whether it was held as joint tenants or tenants in common. The Land Registry title, the ownership documents and the deceased’s will should be reviewed carefully.

The terminology also differs within the UK. In England and Wales, the relevant authority is generally a grant of probate where there is a will, or letters of administration where there is not. Scotland uses confirmation, while Northern Ireland has its own probate procedure. A solicitor can confirm which document is needed and whether a particular transaction can proceed without it.

2. Identify who can give instructions and sign documents

The estate agent, solicitor and prospective buyer will need to know who is authorised to act. This may be the executor named in the will or an administrator appointed through the court process. If there are several personal representatives, all may need to participate unless the solicitor confirms that one can act under the circumstances.

Do not assume that being a beneficiary gives you authority to sell. Beneficiaries may have an interest in the estate, but that does not necessarily allow them to sign a contract or transfer the property.

3. Obtain a professional valuation and agree the sale strategy

Before accepting an offer, obtain evidence that the proposed price is reasonable. A valuation, local market appraisal or independent survey can help demonstrate that the property is being sold for proper value. This is particularly important where beneficiaries disagree, the property is being sold to someone connected with the estate, or the sale is taking place without broad marketing.

Consider whether to sell through an estate agent, by private treaty or to a cash buyer. A cash purchase can reduce the risk of a related buyer’s mortgage failing, but it does not remove the need for conveyancing, title checks, property information and the correct estate authority. The buyer’s funding position should still be verified.

4. Tell the buyer that probate is outstanding

Probate should be disclosed at the outset rather than after an offer has been accepted. The buyer needs to understand that the transaction may not be capable of completing until the grant, confirmation or other required authority is available.

The buyer’s solicitor may accept an agreement that is expressly conditional on probate. The contract could include a condition allowing completion only after the personal representative has authority to transfer the property. It should also deal with what happens if the application is delayed, refused, or reveals an issue with the will or estate.

Any proposed wording should be drafted by the conveyancer. An informal promise or exchange of emails is not a substitute for a properly prepared contract.

5. Provide the conveyancing information

Prepare the documents the buyer’s solicitor is likely to request, including:

• the title register and title plan, where available;
• the deceased’s death certificate and relevant will or testamentary documents;
• property information and fixtures-and-fittings forms completed on behalf of the estate;
• planning permissions, building regulation certificates, guarantees and warranties;
• details of mortgages, charges, restrictions, lease terms or service-charge liabilities;
• information about boundaries, disputes, subsidence, alterations or known defects; and
• details of any occupants, tenants or agreements affecting possession.

Information supplied by the estate must be accurate. If the personal representative does not know an answer, it is safer to say so and allow the solicitor to advise than to make an unsupported statement.

6. Deal with the property’s condition and possession

Decide whether the property will be sold vacant, with an existing tenant, or with another occupier in place. Tenancies can affect notice requirements, the buyer’s intended use and the date on which possession can be given. If the property is empty, arrange suitable insurance, security, maintenance and collection of post while the sale is pending.

Where the property needs substantial work, compare the cost and risk of carrying out repairs with selling in its current condition. A buyer may reflect defects in the offer, but the estate should not authorise works or remove fixtures without checking the financial and legal consequences first.

7. Keep the probate application and sale aligned

Estate administration and conveyancing should progress together. The solicitor handling the sale may need information from the probate application, including the will, the identity of the personal representatives and details of the estate. Missing information, inconsistent names or unresolved questions about the will can create problems for both processes.

If inheritance tax or other estate liabilities are relevant, the personal representatives should ask the estate solicitor how these will be dealt with. The availability of sale proceeds does not automatically determine when taxes or debts are payable, and the sale price may affect the estate accounts.

8. Take care before exchange of contracts

Exchange is normally the point at which the parties become contractually committed. Before exchanging, confirm with the solicitor that the proposed contract is enforceable, the correct people are signing, the completion condition is workable and the estate can meet its obligations.

Important points may include the deposit, the proposed completion date, insurance responsibility, vacant possession, included contents and the consequences of delay. If probate is not expected by the intended date, the contract should explain whether the date can be extended or whether either party can withdraw.

Exchange without suitable protection can expose the estate to a claim if completion cannot take place. A buyer may also incur costs or withdraw before exchange if the legal position remains uncertain.

9. Complete the transfer and account for the proceeds

Once the required authority is available and all conveyancing conditions are satisfied, the buyer’s funds can be transferred and the property deed completed. The sale proceeds should normally be paid into an account controlled by the personal representatives or their solicitor, rather than distributed informally among beneficiaries.

Before distributing money, the personal representatives should identify secured lending, funeral expenses, taxes, administration costs and other estate debts. They should also retain enough funds for unresolved liabilities and obtain advice on the estate accounts. Beneficiaries may be entitled to the net proceeds, but the timing and amount of any payment depend on the will, debts and the wider administration.

10. Keep a written record

Retain the valuation evidence, offer details, contract, completion statement, invoices and communications with beneficiaries. Records can help show how the sale price was reached and how the proceeds were applied. They are especially useful where the estate is contested, the sale was agreed quickly, or one beneficiary questions the transaction.

A cash buyer may be suitable where the estate wants a simpler transaction and the buyer’s conveyancer is comfortable with the outstanding probate position. The important distinction is that a cash purchase changes the funding method, not the legal requirements. The sale still needs appropriate authority, accurate information, a properly drafted contract and orderly treatment of the proceeds.