House purchase - vendor has just died

[ILoveAnnaQuay]

My DNiece (FTB) is in the process of buying her first home. The man who owns it is in a care home but his daughter has Power of Attorney and is dealing with the sale.

They were hoping to exchange by the end of the week but she has just been told that the owner sadly died at the weekend. Dniece has said her solicitor says this shouldn't affect the sale but surely that can't be right? I m sure it will now have to wait until Probate is granted. Has anyone ever been in this position?

Well yes, but I have been Attorney and executor for three family members and am currently Attorney for another, there is a process and timescale that has to be adhered to, grieving or not. Death and taxes wait for no one.

Occupying yourself with preparing the Estate is actually quite a good diversionary tactic from the pain in my experience and bizzarely i found, also helps with the grief. Going through someone's personal effects brings a lot of emotion, not all of it is sadness. It does remind you of happier times too.

Yes you have to wait for probate.

We where SSTC on a house that the owner died on and its over a year and a half in and probates not sorted. They said it won't be anytime soon due to an offshore bank account (so probate is under TWO countries opposing laws and you can't apply to the other country as a non resident).

Think yourself really lucky our seller had exchanged on one house with someone else and they are now legally trapped both owning and not owning the house with no end in sight where as we just lost money on surveys and solicitors and wasted a year etc...

I'd probably trust the advice from the solicitor over mumsnet

If many knowledgeable posters are saying WTF, I am not sure I would. I would at least ask questions.

Do solicitors never get things wrong then?

Unless the solicitor knows the absolute full details of the will/beneficiaries/estate/IHT etc etc, then they're a fool to make a proclamation like that

The solicitor is sort of right. I was selling my Mum’s house earlier this year under POA when she died and the solicitors said that the sale process could proceed in some aspects but would be held at the point of signatures whilst Probate was established. It’s like any other delay, in a sense. Probate went through very quickly (a couple of weeks).

(Unfortunately the buyer then also died, but that’s not relevant to your question!)

You have to wait for probate. POA ceases on death. It wont effect the sale in that it will probably still go ahead but there might just be a delay.
I brought a house where the owner died the week we planned to exchange - we had to wait 6 additional weeks as there was no POA or will in place prior to their death.

Thanks everyone. For all I know the solicitor might have said "hopefully this won't hold things up for too long" and DN - ever the optimist - has interpreted this as "it won't delay the sale".

I'll be chatting to her tonight. It's reassuring that most people have had probate go through very quickly but of course we don't know the circumstances.

Probate on my father took 4 weeks in May of this year, if the estate is simple it can be quick.
If IHT400 has to be completed and submitted to the tax office, that will make it a bit slower.
The daughters POA will end on the death, so the estate will pass either in accordance with the will or intestacy, then the sale can proceed if the beneficiaries want to proceed of course.
There is no time limit on applying for probate, and the executor and family will have a lot to do initially.
I would think there will be a delay of at least months, if not a total derailment. sorry!

None of us knows how simple / complex the estate is. It took several months in respect of each of my father, mother and FIL (although in some cases held up by Covid rules). In respect of a house sale you need to remember that the POA can sell whilst a person is alive as they are dealing with the wishes (or what benefits) the elderly person. The attorney is not necessarily the beneficiary of the will.

Our probate took ten days.

we had paid the iht ahead of time as you now have to.

total timeline was IHT forms submitted 16 August and probate issued on 25 September.

Exactly, if the beneficiary is another person, or it splits between the POA holder as beneficiary and a sibling(s) they may not want to sell or want more money from the sale.
Or if there is no will intestacy will need to be followed. It's not to say that the sale won't proceed after a time, but there may be a delay.
Best case scenario is that the estate is simple, the POA holder is the beneficiary, probate granted quickly restoring the POA holders rights to sell, in that scenario, if probate is applied for quickly and the current quick turnaround times are in your favour, maybe 6 weeks and back on track.

Unless the Attorney is also an executor then they no longer have authority to do anything with the sale. The solicitor is wrong, unless the property was held as joint tenants with a surviving owner, in which case title automatically passes to the survivor.
That isn’t the case here.

It's not just the probate, though.

I would urge her to compile a list of all the various circumstances suggested here and ask her solicitor if he has the answers to any.

Specific questions:
Is the Dd the executor?
How many beneficiaries?
Simple estate below IHT level?
Any offshore property, money or other assets?
Any shares or other property subject to Capital Gains Tax?
Any charge on the property?
Is the Dd still keen to go ahead asap with the sale?

An executor or executors distribute the funds in accordance with the will. It’s not up
to beneficiaries to query this or even see the will. They are not in a position to over-ride the will or the executor in terms of keeping a house. Obviously the will might leave the house to the DD and she might still want to sell it to pay beneficiaries. So the intentions of the executor and whether it’s still going to be sold do matter and it’s only fair for the executor to be clear about this.

Its not always that straight forward though, firstly that assumes there is a will. Secondly if there is a will bu the house is left to 3 people equally, lots of equations there about who and how of the selling, these are all worse case scenarios of course

The best is, that the executor is the daughter, that everything was in a will, only one beneficiary, IHT is paid, or not due, probate can be issued, house can be sold.

Ours had to have time in the London Gazette as well, 28 days I think?

The deceased person did a PofA. That suggests they were organised and probably had a will. The beneficiaries don’t over ride the will. If payments cannot be made without selling, it’s sold. Of course the solicitor might know all of this. I informed my solicitor and the agent the following day. It’s just courtesy really. So it might be very straightforward.

The solicitor may be able to apply for an ad colligenda bona grant if they are not ready to apply for probate. This is an emergency grant to protect the estate in circumstances such as this when it is not possible to apply for a full grant quickly enough and it is needed to e.g. protect a property sale or in time for a court case. It would issue as an administration grant even if there is a will, and can be issued to whoever is deemed most suitable. The solicitor would need to apply for a court order from the Registrar and set out in a statement of truth why the grant was needed and why the applicant was most suitable person to deal with the collection of the estate.

The turnaround time for an ad col grant is much quicker than for a normal grant, as it is a temporary grant that will only let the grantee collect the assets and sell the house. A full account to hmrc isn't required for an ad col grant if hmrc issue a clearance letter to issue the grant before any inheritance tax is paid if the full estate value isn't known. Probate try to turn around ad col grants in a week, but they can be even quicker if it is to a set deadline and all the required information is provided.

My DF died midway through the sale of his flat. I was his executor. Made no difference to the sale at all except that I signed the paperwork on behalf of the estate.

If there is a house there has to be probate.

But if they are on the ball it can be sorted quickly and the solicitor or executor can make a case to the probate office that there is a need for it to be dealt with urgently as it was mid process. My Dad dies between exchange and completion and it caused a few issues but nothing insurmountable and because we were already committed to the sale we were able to get probate through quickly as his other finances were simple. Good job as the lovely lady who he sold to even though she spent a year faffing around charged us the fees for late completion costing us several thousand but it was unavoidable as was necessary for us as executors to sign. To be fair his solicitors that did the will and sale were really quite useless and had to be pushed hard to sort those two things I dealt with probate and got it in 2 weeks.

DH and I did our wills and POAs last year with good financial advice. When we die our executors will not have to go through probate, though I forget exactly why!

You don’t need probate if everything is owned with a spouse and goes to them. Or is less than £5000. So in essence you don’t personally have very much.

I spoke to my niece last night. Apparently, as I suspected, the solicitor actually said something along the lines of "hopefully this won't hold things up too much"

I have told DnIece to ask specific questions, including all the ones @HotSource helpfully suggested.

I'm keeping my fingers crossed that it will all be straightforward but clearly exchange isn't going to happen today!

If you own your home as joint tenants and have joint accounts then there is no need for probate when the first partner dies - but, when the second of you passes, if there is more than £5K in gas or property owned then your executors will have to apply for probate - but it's not a scary or complicated process, completion of a few forms, no more tricky than a tax return (which is basically what it is) - as with a tax return the most difficult part is corralling the information needed to complete it.

My mum died while her house was in the process of being sold to pay her care home fees. I had POA and was also the joint executor with her solicitors. Probate was granted in under a month and it didn't delay the sale.