Probate property

[Zapzep]

I had an offer accepted on a property. When I viewed I asked about the circumstances of sale and was told it was a deceased estate. I completed all the I’d checks and received a memorandum of sale, only to receive a call from the agent advising me that the property has yet to go through probabte that would take 16 weeks? Does anyone know anything about this I can’t go ahead if it is going to take 6 to 9 months even before the conveyancing process can start?

https://en.m.wikipedia.org/wiki/Ad_colligenda_bona. Try read this it will explain better.

it’s basically a “limited grant of probate,” the solicitor will be able to sell the property and hold the proceeds in the estate until probate is granted, it’s changing the asset into cash, but makes no difference to the estate at the end of the day.

the only thing I will point out is you might find it’s - sold as seen, but your estate agent will confirm and deal with this for you.

ours got complicated because our chain was going to break before the grant came through, in the end we completed on our property and moved into the new one before the grant came through. We ‘ rented “ the property for a month paying the rent up front the day we moved in, this was then taken off the price of the property, so we didn’t loose out.

it got complicated, but was worth it a year on I love the place.

we were just lucky, our solicitor is a very close friend, but specialises in probate not conveying, so knew what to ask for. Your solicitor might need a little prompting to push for it

That’s not true. Lots of examples of houses being marketed before probate is granted. In fact, there are circumstances in which contracts can be exchanged before probate is granted — although completion has to wait. I know, because this is something we were going to do (sale fell through for other reasons). Estate agents may have dubious dress sense and sales tactics but there is a mound of legal obligations they have to fulfil. Some might be happy to operate illegally, but the vast majority don’t.

If there was a will this should all have been made clear, and it’s the executors who sell the house, not the beneficiaries— though they can be one and the same.

My mum bought a probate property. They had applied for probate at the same time as they put the house on the market - otherwise I wouldn’t have considered it.

Lady died the March or April, probate applied for end June, my mum’s offer was accepted at the same time. Probate came through early Aug, exchanged mid Aug and completed end of Aug. So yes we did the conveyancing while waiting for the probate to be granted. This was 2021 when everyone everywhere had a backlog too.

Downside was the family couldn’t (wouldn’t not couldn’t probably, as they were arseholes) answer questions very well on the property information form, didn’t have certificates etc.

That was probably quite quick to get probate, so it was taking a chance. But this was summer 2021 when houses were flying off the market and my mum was desperate.

FIL’s probate took more than a year even though he had very little to leave, because the DSS (or whatever they’re called nowadays) decided to review to see if he owed any money back.,

I have just checked my answer to @everythingcrossed above. Yes, you can do all the conveyancing and even exchange contracts before probate is granted. Obviously you cannot complete the sale until afterwards.

It should be fine. Though I am surprised the EA didn’t mention it. Perhaps it sold sooner than they thought!

there was a section on radio 4 lunchtime programme last week on this exact problem, where executors selling deceased parents houses were losing their buyers precisely because probate is taking sooooooo long to process at the moment. if there is any issue for you perhaps ask to pass a letter to the sellers directly...apparently if they have a probate specialist involved ,someone can request a "speed up" to the process to prevent loss of a house sale (sorry brain fog,cant remember the proper terms!!)

That's exactly why I think properties ought not to be allowed to be marketed until probate has been granted, never mind applied for- in your case it looks like they hadn't even applied for it. Until the will is proved and probate is granted, nobody knows who owns it. So how can a HA accept instructions to market it? There might be another will, or a challenge to the will.

A will can be clear as day, but it can still be challenged. So probate ought to be obtained before marketing a property. If people want it to be a faster process, they need to stop voting for governments which cut staff in government departments. Same for the Land Registry.

They should have got probate first, then; they were badly advised or didn't take the advice they were given. People attempting to sell before getting probate are just mucking everyone else about.
Probate taking too long is another issue- that's into 'nothing works any more' territory.

That seems very unfair- if the will is challenged because of a dispute or the finding of a later will, , the actual owners in the long term may have wished to have kept the house.
This mess could all be solved by making it a legal requirement to obtain probate before marketing property.

Why is it so bad? We applied for probate on my dads house ourselves in 2019, took about 3 weeks.

Is it people using solicitors to do the work or is it the probate office that are causing the delays?

@NewFriendlyLadybird It is true. It's my job so I know I'm right on the fact I gave. There's legislation they need to follow and a lot aren't.

We bought a probate property in lockdown, the family had already applied for probate before the property was marketed, probate took less than 3mths to be granted. You can market the property and start proceed with the process, but you can’t exchange until probate is granted. Good luck, it all worked out well for us, it doesn’t always take a long time.

We just bought a probate property. Probate took about 12 weeks from when they applied and they applied 1 month before it was put on the market. Solicitors won't exchange without the grant.
It was really straightforward for us and didn't cause a delay.

I've posted this many times, but I applied for probate during covid, when there was a huge backlog. I'm sure you weren't even allowed to enquire about the progress for 8/10 weeks or something.

I sent off the form and received a text to say probate had been granted within 24 hours! I hadn't at that point even sent the documentation over that was required. I called them as I thought there'd been a mistake and was told with simple estates like mine, they just rush them through. I didn't use a solicitor, done it all myself - I think using a solicitor adds on time as legally they have to wait a certain amount of time for any further beneficiaries to make themselves known.

Obviously every case is different, but just wanted to point out sometimes it can go through really quickly.

Brought probate last year we didn't know until after the offer went in, we clung on and it took until 2 weeks before our low rate mortgage offer expired so 6 months with no chain. Pure hell and stress never again. Although the sellers were lovely and kept us informed every step of the way. Good luck

the reason for some people needing to sell asap is where inheritance tax is payable....apparently this has to be paid within 6 months of the death regardless and if the assets are tied up in the house then this leaves executors/relatives with having to potentially take out a loan, if they have to wait for probate before being able to market the house. they did say on the programme a lot is to do with staff cuts and loss of local offices that previously dealt with probate.

I used to work for a conveyancing solicitor and we acted for many clients selling or buying a probate property. While it is definitely better to have the Grant of Probate in place, the majority were still "waiting" for it to be granted. You can start and progress conveyancing while waiting, but you won't be able to exchange or complete before receiving the Grant of Probate. While there may be ways around it, most solicitors would rather wait for the Grant before proceeding to exchange.

I didn't realise that Estate Agents were not supposed to market a property before probate has been granted. That's certainly not been my experience when receiving instructions to start the legal conveyancing.

It roughly takes 4 months for the probate to come through, which is approximately how long conveyancing takes.

It might help manage your expectations though if you know whether the executor has applied for probate themselves, or whether they have instructed a solicitor to do it. Solicitors will take far longer, as they will have a case load of other files, all at varying stages of progress, whereas a personal Executor has only got one to concentrate on and will have an incentive to get the paperwork and application sorted out as quick as possible.

Not sure how much this helps (and for reference I'm in Scotland) but I won a bid on a house late September last year. I was told the seller accepted but they couldn't provide a qualified acceptance until probate was granted. I also panicked and wondered how long this would take as we wanted to move in quickly and before Christmas. We managed to have it completed and we picked up the keys by the end of November so it took 2 months. I was told their solicitor only applied for probate once the offer was accepted.

Could you link to the relevant legislation?

or give a reference for which section it’s in?

would be much appreciated.

I've had another look through the the "Estate and letting agency business guidance for money laundering supervision" on gov.uk and I can't see any mention of agents being unable to market a property before probate is granted.

Is there another piece of legislation that covers this?

I think the PP is talking rubbish, even though they supposedly do this as their job.

I’m about to list my late parents property for sale and I’ve been told by my solicitors and estate agents that is fine to market as I’m executor and have authority too instruct them. But we obviously can’t complete until probate has been granted.

A quick google brings numerous legal firms saying it’s ok to market a property before probate is granted and also details from Haart (the large estate agents) and Zoopla. But apparently they are just all advertising to the world that they act illegally!

I think the PP is talking rubbish, even though they supposedly do this as their job

I think so too.

But it's just such a strange thing to pick an issue with, if it's not true!

The problem is, until probate has been granted, no-one is legally able to sell the property. Once probate is granted, the executrix can sell straight away, as can a new owner if thats what the will has stipulated.

It is possible to run the conveyancing in tandem with the probate application, but you cannot exchange subject to probate.

The executor of the estate has the authority to put the property up for sale, so it is possible that probate will be granted around the time you are ready to exchange, however, if there are delays with the probate application, you could be ready on the conveyancing side, but stuck waiting for the Grant before being able to exchange and set a date for completion.