Death of seller just before sale

[UnclePhilip]

Seller of a leasehold flat goes into hospital while sale very nearly done, exchange and completion to be done in a few days. Seller's solicitor won't complete without seller's confirmation. Seller dies.

I said I thought seller's executor would need to get probate before selling, taking months.

Is there any way round this? The buyer is a family trust with a disabled beneficiary ready to move in....

[DrFfybes]

I was in this exact situation 2 years ago (2 years to the day as it happens). Mum went downhill rapidly, and even though we were selling under PoA that Right is extinguished at Death.

We had to wait for Probate to be granted in order to exchange and complete.

Now there is an option, and that is to rent the property out to the buyers until you get Probate. It isn't ideal, there are pitfalls, but it can be done.

Our situation was slightly unusual as we'd known the buyers since I was born, I grew up in their house and their kids in ours, and they'd already sold their place and were moving in with their daughter who lived around the corner. We just gave them the Keys and didn't tell the solcitors. Probate was granted by end of Jan but as I'd had PoA for a decade and there was no IHT things were pretty straightforward.

Paul

[Lootman]

I was in this exact situation 2 years ago (2 years to the day as it happens). Mum went downhill rapidly, and even though we were selling under PoA that Right is extinguished at Death.

We had to wait for Probate to be granted in order to exchange and complete.

Now there is an option, and that is to rent the property out to the buyers until you get Probate. It isn't ideal, there are pitfalls, but it can be done.

Our situation was slightly unusual as we'd known the buyers since I was born, I grew up in their house and their kids in ours, and they'd already sold their place and were moving in with their daughter who lived around the corner. We just gave them the Keys and didn't tell the solicitors. Probate was granted by end of Jan but as I'd had PoA for a decade and there was no IHT things were pretty straightforward.

Paul

Yes I had a near identical experience with my mother, who died the day before exchange was due. Frustrating as I would not otherwise have needed probate.

And in fact like you I knew the buyer so we came to a private arrangement whilst we waited for probate, about 3 months.

[UnclePhilip]

I was in this exact situation 2 years ago (2 years to the day as it happens). Mum went downhill rapidly, and even though we were selling under PoA that Right is extinguished at Death.

We had to wait for Probate to be granted in order to exchange and complete.

Now there is an option, and that is to rent the property out to the buyers until you get Probate. It isn't ideal, there are pitfalls, but it can be done.

Our situation was slightly unusual as we'd known the buyers since I was born, I grew up in their house and their kids in ours, and they'd already sold their place and were moving in with their daughter who lived around the corner. We just gave them the Keys and didn't tell the solicitors. Probate was granted by end of Jan but as I'd had PoA for a decade and there was no IHT things were pretty straightforward.

Paul

Yes I had a near identical experience with my mother, who died the day before exchange was due. Frustrating as I would not otherwise have needed probate.

And in fact like you I knew the buyer so we came to a private arrangement whilst we waited for probate, about 3 months.

Thanks for replies. One thing that concerns me is that while I know both buyer and executor, they don't know each other, so a friendly informal arrangement is less easy than in your cases.

I'd thought of either renting, or even an option to buy upon probate, but have a sinking feeling that, legally, the executor may not only be unable to sell but also not able to rent?

[DrFfybes]

I'd thought of either renting, or even an option to buy upon probate, but have a sinking feeling that, legally, the executor may not only be unable to sell but also not able to rent?

I was surprised that renting it before Grant of Probate was an option, but it was mentioned.

Obviously once Probate is granted the executor can sell immediately.

[scrumpyjack]

I'd thought of either renting, or even an option to buy upon probate, but have a sinking feeling that, legally, the executor may not only be unable to sell but also not able to rent?

I was surprised that renting it before Grant of Probate was an option, but it was mentioned.

Obviously once Probate is granted the executor can sell immediately.

You can't sell without probate because the Land Registry won't transfer title, but there is nothing, AFAIAA, to stop the executor renting out the property, except that the executor runs the risk of being in deep trouble if the court does not eventually confirm his executorship by granting probate,

[Clitheroekid]

It's something of a truism that "The executor's power derives from the Will." This means that the executor has authority as from the date of death to deal with the deceased's assets, and can sign a valid contract and transfer of the property even though probate hasn't been granted.

There is a slight degree of risk, in that until probate is granted the executor can't be 100% sure that he is the executor - the deceased may, for example, have made a later Will appointing a different executor - but in most circumstances this is a purely hypothetical risk.

Of course, the transfer can't be registered at the Land Registry until probate, but the transfer itself can be completed.

If the buyer is wary of going ahead without probate then you could offer to leave the sale proceeds in your solicitor's client account until the grant of probate. The solicitor can then provide the buyer's solicitor with an appropriate undertaking, which should keep them happy. The cash can then be invested at 5% while you wait, and Bob's your uncle!

It's also worth writing to the probate registry explaining the position and asking if they can expedite the grant. There's no formal procedure for doing this, but I've often found that they will exercise their discretion and do so.