Can You Sell a House Before Probate

Selling a house after someone has passed away is a task that often comes with emotional weight and legal complexity. One of the most common questions asked by executors and family members is whether a house can be sold before probate is granted. The short answer is no, you cannot legally complete the sale of a property until probate has been issued, but there are some practical steps you can take in advance to prepare for the sale and minimise delays.

This article explains the legal position on selling a house before probate, who can deal with the property, what the probate process involves, and what you can and cannot do while waiting for the grant. It is written for executors, administrators, beneficiaries and anyone involved in managing an estate that includes residential property in the UK.

What Is Probate and Why Does It Matter?

Probate is the legal process of proving a will and confirming the authority of the executor to manage the estate of someone who has died. If there is no will, a similar legal process applies, known as letters of administration, which appoints an administrator to carry out the same role. The grant of probate or letters of administration gives the named person the legal right to sell assets, settle debts and distribute the estate to beneficiaries.

Until probate is granted, you cannot legally sell the property. The Land Registry requires that the seller has legal authority to transfer ownership, which only comes once the grant has been issued. This is true even if the deceased’s will clearly leaves the house to a particular person or names an executor with full powers.

Who Can Deal With the Property Before Probate?

Only the executor named in the will, or the administrator appointed under intestacy rules, has the right to apply for probate and deal with the deceased’s assets. Until they receive the grant, they are responsible for safeguarding the property and ensuring it is secure and insured. They may not make any legal transactions on the property, such as selling or transferring ownership, but they can take steps to maintain the home, pay utility bills and prepare it for sale.

If the house was jointly owned with another person as joint tenants, the surviving co-owner automatically inherits the property. In that case, probate may not be required for the property itself, although it may still be needed for the rest of the estate. If the owners were tenants in common, the deceased’s share passes under their will or intestacy rules, and probate will be required to transfer or sell the property.

Can You Put a House on the Market Before Probate?

Yes, you can list the property for sale before probate is granted, but you cannot exchange contracts or complete the sale until the grant has been issued. This means you are allowed to have the property valued, speak to estate agents, and even market it publicly to prospective buyers. However, any offers accepted must be made subject to probate.

Buyers and their solicitors will expect full transparency about the status of the probate application. Most will wait, provided the process is underway and progressing, but delays in obtaining probate can lead to frustration or buyers pulling out. It is important to manage expectations and keep communication open with the buyer and their representatives.

How Long Does Probate Take?

The time it takes to obtain probate can vary depending on the complexity of the estate and whether inheritance tax is payable. In straightforward cases, it may take around eight to twelve weeks to receive the grant from the date of application. If there are issues with the will, valuations or HMRC paperwork, it may take longer.

Delays can also occur during periods of high demand or if documents are missing. Executors are advised to start gathering information as soon as possible, including death certificates, bank account details, valuations of assets and property information. Using a solicitor can help reduce errors and speed up the process, although it will incur additional cost.

Can You Exchange Contracts Before Probate?

No, you cannot exchange contracts until probate has been granted. Exchange of contracts is a legally binding step that commits both parties to the sale. Since the executor does not yet have the legal authority to sell the property, it is not possible to enter into this binding agreement until the grant is received.

You can, however, negotiate the sale, accept an offer and begin the conveyancing process in preparation. Most buyers will instruct their solicitor to begin searches and due diligence once an offer is accepted, with the understanding that completion cannot take place until probate is confirmed.

What Happens After Probate Is Granted?

Once probate is issued, the executor can proceed with the legal transfer of the property. The sale can move forward to exchange and completion, and the proceeds of the sale become part of the estate. The funds are then used to pay off any outstanding debts, including inheritance tax if applicable, before being distributed to beneficiaries as set out in the will or intestacy rules.

It is important to register the grant of probate with the Land Registry so that the executor can be shown as the legal owner of the property for the purpose of the sale. If a buyer has been waiting for some time, keeping them informed and updated on the grant’s arrival will help ensure the sale progresses smoothly.

Risks and Pitfalls

One of the main risks in attempting to sell before probate is misleading buyers or moving too quickly before authority is confirmed. Entering into legal agreements or promising completion dates without having the grant in place can lead to cancelled sales, legal disputes or delays. Another common mistake is failing to secure the property during the waiting period. Vacant properties are vulnerable to damage or burglary and may require specific insurance.

Executors should also be cautious about spending money on improvements or repairs before probate, unless these are essential to protect the value of the estate. Any significant decisions should be carefully documented in case questions arise later from beneficiaries or HMRC.

Case Example

Two brothers were named as executors in their father’s will and began the process of applying for probate shortly after his death. They arranged for the property to be valued, listed it with an estate agent, and accepted an offer from a first-time buyer. The buyer was aware that probate had not yet been granted and agreed to wait. After ten weeks, the grant was issued and the sale was completed within a further four weeks. Because the executors had been transparent and prepared all documents in advance, the sale progressed smoothly once probate was in place.

Conclusion

While you cannot legally complete the sale of a house before probate is granted, there is much you can do to prepare for the sale and ensure a smooth transaction once the grant arrives. By understanding the legal framework and working within the rules, executors and administrators can minimise delays, avoid legal pitfalls and protect the value of the estate. Transparency with buyers, careful record keeping and early preparation are the keys to managing a property sale during probate with confidence and care.