Losing someone close to you is never easy, and being named as an executor (the person appointed in a will to administer a deceased person’s estate) often means stepping into a role you weren’t expecting.
One of the most pressing questions many executors face is what to do with the family home. Whether you need to protect the property, cover estate costs, or act in the best interests of beneficiaries (the people due to inherit from the estate), understanding your legal position before you take any steps is essential.
This article is specifically referring to a situation where the deceased owner made a will and an executor in the will is dealing with the estate.
| Can an Executor Sell a Property Before Probate is Granted?
The short answer is: not entirely. In England and Wales, an executor can market a property and accept an offer before probate is granted, but cannot legally exchange contracts, complete the sale or transfer legal title to a buyer until a Grant of Probate (the official document issued by the Probate Registry confirming the executor’s authority to deal with the estate) has been issued.
This distinction matters. Getting the property on the market early can reduce delays, but exchanging contracts unconditionally or allowing completion to take place without the grant is not permitted.
| What is a Grant of Probate and Why Does it Matter for a Property Sale?
A Grant of Probate is the legal authority confirming an executor’s right to deal with the deceased’s estate. For property, this authority is critical: HM Land Registry will not register a transfer of ownership without it. If the property is registered solely in the deceased’s name, the executor cannot legally transfer it to a buyer until probate is granted, and the sale simply cannot complete.
| When You Do Not Need Probate to Sell a Property
There are some situations where probate isn’t required:
- Jointly owned property held as beneficial joint tenants (a form of co-ownership where the deceased’s share passes automatically to the surviving owner by the rule of survivorship). The surviving owner can sell without probate and without the need to appoint another trustee. An application can simply be made to HM Land Registry using Form DJP to remove the deceased’s name from the register.
- Property held in trust. Where property is held in a trust (a legal arrangement in which assets are managed by one person for the benefit of others), the trust documentation governs what happens, and probate over the personal estate is not normally needed.
| What Executors Can do Before Probate is Granted
While you’re waiting for probate, there are several practical steps you can take:
- Instruct a RICS (Royal Institution of Chartered Surveyors) surveyor to carry out a valuation for probate and inheritance tax purposes.
- Appoint a residential conveyancing solicitor and begin preparing the sale file.
- Instruct an estate agent and list the property for sale.
- Accept an offer, subject to the Grant of Probate being issued.
- Secure the property and arrange unoccupied property insurance.
- Apply for a council tax exemption, which is often available where the deceased was the sole occupier.
| What Executors Cannot do Before Probate is Granted
Until the Grant of Probate is issued, executors must not:
- Exchange contracts unconditionally with a buyer.
- Allow the sale to complete.
- Transfer legal title to the property.
- Distribute any sale proceeds to beneficiaries.
Acting beyond your authority can expose you to personal liability, so taking legal advice before you proceed is important.
| How Long Does Probate Take in England?
The Probate Registry currently takes around 16 weeks to process a complete application, though timescales can be longer for complex estates, those involving inheritance tax, or where applications are paused for further information. This wait affects buyers, which is why early and honest communication about the probate position matters. Applying for probate promptly after the death is always advisable.
| Selling Subject to Probate: Practical Tips for Executors
If you decide to market the property before probate is granted:
- Tell the estate agent, buyer and conveyancing solicitor about the probate position from the outset.
- Manage buyer expectations honestly throughout the process.
- Bear in mind that there’s no binding contract until exchange, so buyers can withdraw at any point during the wait.
Early disclosure reduces misunderstandings and protects you as executor.
| Inheritance Tax and Property Sales Before Probate
Inheritance tax (IHT) is the tax payable on a deceased person’s estate. In most cases, any IHT owed must be paid before probate will be granted. Executors can arrange payment of IHT on property using the HMRC direct payment scheme or an IHT loan, or can choose to pay the IHT that’s attributable to the property by instalments.
If HMRC have accepted the value you submit for IHT purposes and the property sells for more, you may have to pay Capital Gains Tax on the increase. Our trusts and inheritance tax planning solicitors can help you understand the full tax picture before you proceed.
| What Happens if There is No Will?
If the deceased didn’t leave a will (known as dying “intestate”), there is no executor. Instead, a person entitled under the intestacy rules (the rules that govern who inherits when there is no will) must apply for a Grant of Letters of Administration. Unlike executors, administrators derive their authority solely from the grant itself, so they cannot bind the estate to a sale in any form before it’s issued. Our wills and probate team can guide you through the process from the start.
| Frequently Asked Questions About Selling a Property Before Probate
| Can You Put a House On the Market Before Probate is Granted?
Yes. Executors can list and market a property and accept an offer before probate is granted, but completion must wait until the Grant of Probate has been issued.
| How Long Does an Executor Have to Sell a House in the UK?
There’s no statutory deadline, but executors have a duty to administer the estate within a reasonable time. The “executor’s year” reflects the general expectation that administration should be completed within 12 months of death, and executors must always act in beneficiaries’ best interests.
| Can You Exchange Contracts Before Probate is Granted?
Generally not, unless the contract is made conditional on the grant being issued. Most conveyancers won’t exchange unconditionally without the Grant of Probate in hand.
| Do You Need Probate to Sell a Jointly Owned House?
Not usually. Probate is only usually required upon the death of the last surviving owner.
| Can an Executor Sell a House Without All Beneficiaries Agreeing?
Yes. Executors have the legal authority to sell estate property without unanimous beneficiary consent, but must act in beneficiaries’ best interests and could face a challenge if they don’t.
| What Happens if the Buyer Pulls Out While Waiting for Probate?
The executor is free to re-market the property. There’s no binding contract until exchange, which is why being upfront about the probate position from the start is so important.
| Can You Sell a Probate Property at Auction?
Yes, but most auction contracts require completion within 28 days. Unless probate is already in hand, this timescale is rarely achievable, so careful planning is essential before choosing this route.
| How Levi Solicitors Can Help
Administering an estate and selling a property at the same time can feel overwhelming, particularly when you’re also grieving. Our wills, probate and estate planning solicitors provide clear, practical support at every stage, from the probate application and inheritance tax through to handling the conveyancing once the grant is in place.
Wherever possible, we’ll help you find the most cost-effective route through the process, whether that’s a straightforward application or a more complex estate.
Call us on 0800 988 7756 or book an appointment online. We have offices in Leeds, Moortown and London, and we’re here to give you straightforward advice that you can rely on.
