The Will Executor has full control over the deceased’s estate, and they can choose to sell the property, unless:
- it does not form part of the Estate because it automatically passed to a joint owner (which happens when they owned the property as joint tenants – see Working out Who Owns the Property)
- there is a surviving joint owner who doesn’t want to sell the property,
- the deceased transferred the property to one of the Beneficiaries in the Will, or
- selling the property is not in the best interests of the beneficiaries.
In most circumstances, the property is sold by the Will Executor and the money is distributed between the beneficiaries. If the deceased had any debts such as a mortgage, then the will executor will have to sell the property to pay off these debts. So that the Will Executor can demonstrate they’ve discharged their duties to the Beneficiaries fully, it is a good idea for them to place a notice in a publication called The Gazette to locate any possible creditors. The property may also need to be sold in order to pay Inheritance Tax (IHT).
When selling a property, it is a good idea for the Will Executor to talk to the Beneficiaries about their options. Although the distribution of the estate is the Executor’s responsibility, the Beneficiaries can take legal action if they believe the Executor has not acted in their best interests. An example is if they believe the Executor has sold the property for less than the market value.
If you are having disagreements with beneficiaries, we can offer you independent legal advice to ensure you are fulfilling your legal obligations and to help you to take the next practical steps.
The best place to start is to check whose name any property is currently in especially if they owned the property jointly with a partner who died before them. In England and Wales most married couples and civil partners co-own a property as ‘joint tenants’. In this case, when one person dies the surviving partner automatically inherits their share rather than through the Will. If the property is owned as ‘tenants in common’ then the deceased’s share of the property will transfer according to the Will (or Rules of Intestacy if the deceased didn’t leave a Will or their Will is invalid).
In most cases this information can be obtained from the Land Registry for a fee but the Land Registry information not only has a cost it is not clear to the untrained eye, and for properties that have been in the same hands for a long time the Title Deeds will be needed which may be held by a solicitor or a financial institution which can be quite a hassle to obtain and even more difficult to understand. Our Free Deceased Property Owner Checker Service removes the hassle and cost from you.
A Will Executor always needs a Grant of Probate (also known as a Grant of Representation) to sell a deceased’s property. If the deceased didn’t leave a Will or their Will is invalid, they will need to apply for Letters of Administration instead.
As long as the deceased’s property was in their sole name then the Will executor can apply to the Probate Court for a Grant of Probate (also known as a Grant of Representation). If the deceased didn’t leave a will or their will is invalid, the executor will need to apply for Letters of Administration instead.
A Grant of Probate confirms the Will Executor’s legal entitlement to manage the deceased’s estate. It usually takes about 4-5 weeks to obtain a Grant of Probate (but can take up to 12 weeks), which needs to be taken into consideration when selling a property.
As part of the probate process, the Will Executor needs to have the deceased’s estate valued including all assets and property. Valuation of property is not usually straightforward, and it is best to get at least 2 or 3 valuations from an appropriately qualified expert with good local knowledge. We can help you find the right experts for this. The estimate must reflect the value of the property at the time the deceased died. It is always important to have a deceased’s estate valued accurately so Will Executors protects themselves from being held personally liable for selling at less than the property is worth. Also, for higher value estates, an accurate valuation must be obtained for purposes of Inheritance Tax (IHT). IHT is a one-off tax that’s paid on the value of a person’s estate over £325,000. There is also a ‘residence nil rate band’ of £150,000 to add on to this threshold when the main residence is passed on to a direct descendent. This gives a total allowance of £457,000. It is important to remember that these figures relate to the total value of the estate, not just the property.
When a property is sold, Capital Gains Tax (CGT) will need to be paid if the property has risen in value between the time of the deceased's death and the sale – this is something to be aware of if there is a delay in selling the property. In 2019-2020 CGT is payable when the gain exceeds £12,000, but this figure is revised annually.
Before putting a property on the market, the Will executor needs to locate the property Title Deeds. These documents can usually be checked through the Land Registry but sometimes the paperwork may be held by a solicitor or a financial institution. The executor needs to check things like whether the property is under the deceased’s name especially if they owned the property jointly with a partner who died before them. They also need to check that there are no other defects in the Title. As experienced legal experts in Probate, we can guide you through the process and support you with your duties at Executor of the Will.
Help with the Full Estate Administration Process and Conveyancing
Lockings Solicitors are experienced in helping will Executors to manage a deceased’s estate as smoothly as possible, giving trusted advice at an extremely difficult time.
We can support you throughout the whole estate administration process including will interpretation, applying for Probate, and property conveyancing. Our Free Deceased Property Owner Checker Service takes away the hassle and cost of working out who owns any property and our conveyancing calculator will give you an immediate quote for the property conveyancing.
For a free initial chat call 01482 977 925