Is Probate Required to Sell a Property?

[RamblinRosie]

My FIL died about 6 years ago, he and his partner owned a house in equal shares. Each had a will allowing the other to reside in their home until death or moving into care.

His partner died in January. Her son is the sole beneficiary of her will, my husband and his sister are trustees of the trust covering FIL’s half of the home, all registered with the Land Registry.

FIL’s partners son is leading on the sale of the home... so DH has had contact with 2 separate solicitors and 2 conveyancers all asking for daft info (including DH’s death certificate). He seems to be a faffer and is always looking for a better deal.

2 sales have been lost.

SIL keeps on about Probate.

So my question is, do we actually need to have probate for FIL’s partner in order to sell the property?

I’m just trying to establish the correct order of process.

Many thanks.

Probate is required if no one named on the deeds is alive.
This is to show a person has the authority to act.
It is very easy to complete the info if there is just cash and one property cost just over £200.
You can advertise a house for sale whilst waiting for the letters of probate which presently is around 4 to 6 weeks. The EA should ask for a copy once it is granted.

Yes you do. And unfortunately probate is taking forever atm

Yes - you definitely need to apply for probate. My aunt died early Jan 2020. I am the named executor (she never married or had a partner and had no children) - completing inheritance tax and probate forms took me a long time - I submitted them in November 2020 and probate was granted in March 2021. Her house only went up for sale about a month ago - I had 3 full offers on the first day - one was accepted and it is going through conveyancing but everything is very slow even without any problems - it took me month to find the deeds to the property among all the paperwork. With covid restrictions on movement it's been very difficult to go to her property (6hrs drive away) to even start emptying it. Due to the large number of covid related deaths and people from various organisations having to work from home - lots of organisations I had to deal with finding it difficult to work as they normally would have done. HMRC who handle the inheritance tax and probate forms have taken on a lot of staff but many are just not experienced enough to answer all of your questions about filling the forms in. I found the whole process difficult, tedious and time consuming - I still have work to do on the estate releasing funds from investments - some in banks abroad - not even huge amount of money - just £1-2k - everything is in French! I wouldn't want to be an executor again.

It’s a tenancy in common and to give a valid receipt on sale there needs to be 2 trustees. The legal estate is held under a joint tenancy so if there are still two trustees they should be able to give a valid receipt on sale. I’m a family lawyer though not a property lawyer, so someone needs to speak to one of those about this.

Yes, you need probate. And asking for the death certificate isn't 'daft', it's essential.

@thecognoscenti It is daft to ask for the death certificate of someone who is not dead!

Yes you need grant of probate and death certificate for FIL.

I wouldn’t put the property on the market until you have the grant of probate as they are taking a very long time atm.

Thanks all.

Looks like this will run on for a while.

Can any of the property lawyers her comment on my point that according to the OP there already appear to be two legal owners registered at HMLR? In which case they can sell and give a valid receipt but must distribute the sale proceeds according to beneficial ownership.

@cabbageking

Probate is required if no one named on the deeds is alive. This is to show a person has the authority to act. It is very easy to complete the info if there is just cash and one property cost just over £200. You can advertise a house for sale whilst waiting for the letters of probate which presently is around 4 to 6 weeks. The EA should ask for a copy once it is granted.

Probate might only take that, and things might be quicker now, but my mother died in June 2020 and probate was granted in August 2021. Straightforward will, no husband, me only beneficiary. I received the Land Reg document to sign last Monday. If you look at the probates granted data on the gov website, some come through in a month, others 6, and then there's people like me waiting over a year.

[quote Biggleton]@thecognoscenti It is daft to ask for the death certificate of someone who is not dead![/quote]
Both owners in the OP are dead, the FIL and the FIL's partner. OP uses DH to refer to the partner's husband who died first (I think)

Geamhradh No, DH refers to my husband, who is not dead.

FIL died about 6 years ago, Probate was obtained and ownership of his half of the home passed to trustees of his estate (DH & SIL) and was registered with the Land Registry.

It seems that everyone and their dog want to see FIL’s death certificate and his will despite the fact that ownership of his half of the property has officially passed to the trustees of his estate.

(One conveyencer, on seeing his will, declared that FIL’s partner’s family had no rights to the property! He hadn’t read the initial instructions or the LR document we’d provided.

Unfortunately DH and SIL have allowed FIL’s partners son to take the lead on the sale and he’s bounced around 2 solicitors and 2 conveyencers, looking for the best deal!).

Collaborate Thanks, that gives me hope.

I’m going through something similar I think 😂
My mum passed away two years ago
Same thing trust with lifetime possession interest in the house for my father with my mums half going to my sister and son - same for my dads half of the House
I’m an executors so is my sister but I’m not a beneficiary only my sister and my son are beneficiaries
We are both named on the deeds with my dad as the owners but technically we aren’t the owners because of the trust .
I think you may need to do a full inheritance tax form even if it’s under the threshold as my parents is . I think that If the house was worth more than 150k as it’s a trust - -asset that your father in law had access to you have to do the full form
I’m using a probate specialist firm who do a fixed fee as a full inheritance tax form is beyond my capability although I did do my mums probate 😂
For the probate specialist I have had to give copy of my mums will , copy of probate certificate for my mum my mums death certificate and a copy of the land registry form
They even asked if I had a copy of my parents marriage certificate
Along with my dads will and his death certificate
Luckily my parents had a “ death file “ 😂 and I’ve kept everything up to date so it’s been very easy to get hold of everything

@Collaborate

That’s sort of what I’ve been told - I think 😂
My sister and I are on the deeds as owners with my father but only as trustees we couldn’t just sell the house or benefit from it while my father was alive .
Now my father has passed away Once we get probate we can sell without having to remove my father details as long as we follow the will and the beneficiaries get the money .
It’s better this way as my son wants to buy a house and if it’s transferred into his name and my sisters to sell then he loses the first time buyers discount

Ha! probate has just been granted on FILs partner, so should now be simpler.

Thanks all.

@Bells3032

Yes you do. And unfortunately probate is taking forever atm

I'd have said the same a few days ago but we got one through in less than 10 days this week!