Who Sells The House After Someone Dies?

The first action is to ascertain whether the house falls within the estate of the person who has died. They might be living in a house that is rented or in which they only have a right to live for their lifetime, as it is held by Trustees under the terms of a Trust Deed. Once it is established that the house belongs to the estate and therefore the proceeds of sale will be paid to the Executors, the procedure is governed by the nature of the ownership.

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Sole owner

Where a property is owned in the sole name of the deceased, then the legal title cannot move without a Grant of Representation, be it a Grant of Probate or Letters of Administration.  An estate agent can be instructed, where there is a Will, as an Executor has authority from the point of death and a conveyancing solicitor can take it to the point of an exchange of contracts.  However, the Grant of Representation is required to make legal title and this has to be available by the completion date, when the keys and money change hands.  As the exchange of contracts sets the completion date, which is then legally binding on all parties, it is not wise to exchange contracts without that Grant being to hand.

Where there is no Will, then the Administrators have no authority to instruct an estate agent until the Letters of Administration have been issued. This will cause a delay.

It may be appropriate to make a protective entry at the Land Registry to avoid the property being sold by a fraudster.  Unfortunately, these people watch the Registry of Births, Deaths and Marriages and can spot an empty house from these records.  It is not unknown for a house to be sold by someone pretending to be the deceased.  The financial loss is borne by the purchaser, as the fraudster cannot make legal title to a house he or she doesn’t own.  However, the buyer, through the buyer’s solicitors, may have paid the purchase price to the seller’s solicitors, who have then paid it to the seller who has disappeared.  The first the buyer will know of this is when he comes to try to empty his removal vans into the property and comes face to face with the family of the deceased.  A protective entry made at the Land Registry ensures notification of any movement on the legal title to those who have registered their interest.

Joint tenants

Where a property is held jointly with somebody else as a joint tenant, then selling the property is very easy. The only action that needs to take place is for a Death Certificate to be placed with the Title Deeds.  The remaining co-owner then has full legal title and free to sell as they please. It is a mistake to think that just because no action is needed to pass the legal title to the surviving co-owner that the Inland Revenue will not be interested in the value of that one half share for Inheritance Tax purposes.

Tenants in common

The passing of a legal title and therefore the power to sell is more complex where the property is held as tenants in common.  There is an entry made at the Land Registry on the legal title to indicate that the property is held in trust, but the terms of the beneficial ownership are not disclosed.  The Land Registry, on a transfer of title, will need to be satisfied that these trusts have ended and they may make additional requisitions on any application to them, such as on an application to register a purchase.

It is technically possible for the surviving tenant in common to appoint a co-trustee to assist in the transfer process, but this does not bypass the Trust which will then pass into the proceeds of sale.  Not every conveyancer is aware of this technicality, and they may insist upon a Grant of Representation being obtained.

There is some debate as to whether it is safer in any event for a Grant of Representation to be taken out so that the transfer is made by the surviving co-owner and the Executors or Administrators of the deceased.  If a Grant of Representation is required for other purposes, such as access to monies in a Bank or Building Society, then there is no reason why this avenue should not be taken, as it is not creating any additional work within the administration.  Where the estate consists of just a property which is under the Inheritance Tax bands, so that the estate is not subject to Inheritance Tax, it is possible to proceed by way of the appointment of a co-trustee. You can also get help with inheritance tax planning with inheritance tax solicitors.

We have experts that work within all three departments of property, trusts and probate and it requires this combined skill set to be able to properly advise on the passing of legal title to land or buildings.  There has been a proliferation of conveyancing firms that contain no qualified experienced solicitors and only at the later stages of a house sale, after an investigation of the legal title by a solicitor, does it become apparent that the firm acting in the sale has not fully understood the complexity of the legal title and the beneficial interests. Our probate solicitors are happy to take on such transactions midway through the selling process, when this becomes necessary so as to get the sale completed.