SELLING A PROPERTY ON BEHALF OF SOMEONE WHO HAS PASSED AWAY

When someone passes away, the focus is usually on the immediate practicalities such as the funeral arrangements.  However, if they owned property, this needs to be dealt with as well.  Buying and selling a property belonging to someone who has passed away isn’t much different from a normal conveyancing transaction, but there are still a few things that the parties need to be aware of and the process can take longer.

What If the deceased owed the property with someone else?

If you owned a property with your spouse or partner, and they pass away, what happens to their share of the land?  Well, if you owed it as joint tenants (which is the most common method if you are a couple) then their half will automatically pass to you, regardless of what their will may say.  You don’t need to do anything at this stage, but when you come to sell the property, your conveyancing solicitor will need to see the death certificate and the will, so that they know that you have the right to sell the property which will still have the deceased’s name on the tile deeds.

If you owned the property as tenants in common (which is usually what happens if you bought with a friend or business associate) then their share of the property passes in accordance with their will, despite any arrangement that you may have had with them.  If they didn’t leave a will, then it will pass in accordance with the rules of intestacy.  Their next of kin or beneficiaries will be entitled to inherit your co owner’s share, and if they want the value of the share, you will either have to buy them out or the property will have to be sold.  If you cannot raise the money to buy their share, you cannot stop them from selling the property.

If the property was owned as tenants in common, the deceased’s share is not automatically 50% of the property.  It might be more, or it could be less.  Hopefully there will be a deed that sets out what the parties agree was the split when they purchased the property.  If not, you will have to try and agree with the next of kin what the share should be.  Sadly, if an agreement cannot be reached, court proceedings may be necessary, which can be expensive, time consuming and unpredictable, so compromise can be very cost effective.

What if the deceased owned the property alone?

If someone in your life has passed away, and they owned a property, you need to find out whether they left a will and if so, what it says.  If there isn’t a will, then the estate will get divided amongst the next of kin in accordance with the rules of intestacy. 

There will need to be at least one executor of the estate (hopefully appointed by the will), and they will be the people who have the legal obligation to sell the assets belonging to the deceased, pay any liabilities and distribute whatever is left to the beneficiaries.   The executor will need to apply for the grant of probate (or letters of administration if there is no will) from the court, which is a court sealed document which tells everyone that the executor has the power and legal authority to sell the deceased’s assets as if they were the deceased themselves.

If you don’t know how to apply for a grant of probate, or even who should be the person applying for the grant, then the best thing to do is to speak to a solicitor as soon as possible.  They will be able to guide you through the process.  Once you have your grant, you can then proceed with the sale.

What do you do once you’ve got the grant of probate or letters of administration?

The grant or letters will enable you to sell the property.  The sale itself will be much the same as the sale of any other property, but there are a few differences.

Full title guarantee

Firstly, when you sell a property a contract is drawn up setting out all the important information regarding the land that is being sold.  If you own the property yourself, the contract will normally confirm that you are selling with “full title guaranteed”.    This normally means

1. You have the right to sell the property.
2. You will do everything you reasonably can to give the title it purports to give, at your own cost.
3. If the property is registered, the whole of the property in the registered title is being sold.
4. If it’s not registered, that the interest being sold is either freehold, or if it’s leasehold the interest is the unexpired residue of the term of the lease.
5. The sale is free from all charges, encumbrances and adverse rights, other than those that have been disclosed. 
6. If the property is leasehold, selling with full title guarantee means that the seller is guaranteeing that they haven’t breached any of the provisions of the lease.

Limited title guarantee

If you are selling on behalf of the estate, then obviously you can’t confirm all the things above, so the contract will say that you are selling with limited title.  This tells the buyer that you are not giving any guarantees about certain aspects of the property, and they will have to carry out their own enquiries if they are worried about anything.  They will also have the option of taking out insurance to protect them if they cannot find the information they need.

Enquiries before Contract

One of the first things a solicitor will ask you to do when you are selling a property is fill in the enquiry’s forms.  These are forms that tell the purchaser all the practical information about the property such as who maintains the boundaries, whether there have been any problems with the property and if any notices have been served.

Obviously if you are selling the property for the estate, it is unlikely that you would know the answers to many of these questions, and it would be very dangerous of you to guess.  It’s much better to be honest and say that you don’t know.  This will, however, mean that the buyer will be buying the property without as much information as if the deceased was making the sale.   This may mean that the property will be worth less than might otherwise have been the case.

Security

If you are an executor selling the deceased’s property, you have certain obligations to make sure that the assets of the estate re kept safe until you can sell them.  If it’s things like jewellery, you can put them in a safe or give them to your solicitor, but you can’t pick up the house and lock it away.  So you need to make sure it’s securely locked up.  You should also remember to let all the relevant parties know, such as the utility companies and the insurance provider.  An insurance company might have special requirements if the property is going to be empty, so make sure you find out what they are to avoid the insurance being invalidated.

If in doubt, speak to your solicitor about how to sell a property of someone who has passed away, as they will be able to guide you through the process. Express Conveyancing offers a range of specialist online conveyancing services. Please contact us should you require any further clarity of any points set out this article.

Disclaimer – our articles are designed to give you guidance and information.  There is no substitute for proper direct advice, particularly as everyone’s circumstances are different.  If anything in this article may affect you, please contact us for advice that is specific to your circumstances.