Reasons to choose Wilson Browne
The Executor of a Will is crucial to the Probate process which sees a deceased person’s estate distributed according to their wishes but what is an Executor?
An Executor is the person appointed under a deceased person’s Will, or by the Probate Registry on their behalf if no Will is in place at the time of death (following an application for a Grant of Representation) otherwise known as an Administrator.
The term commonly used for both Executors and Administrators is “Personal Representative”. It is the responsibility of the Personal Representative to wind up the estate and distribute the deceased person’s assets in accordance with their wishes, or in accordance with the Rules of Intestacy if there isn’t a Will.
What happens if the estate includes a property?
It will be the Personal Representative’s responsibility to sell the property unless the beneficiaries under the Will wish to have it transferred into their names by way of an Assent (The name given to a transfer document by which the representatives of a deceased owner transfer the property to the person entitled.)
It is common for a Personal Representative to have limited knowledge of the property they are proposing to sell, they may not have ever lived at or locally to the property. In this instance, they are unlikely to have the requisite knowledge to complete the standard conveyancing protocol forms (for example the seller’s property information form and fixtures and fittings form) or to respond to any enquiries raised by the buyer’s conveyancer.
If this is the case, that’s fine, there is no expectation to know everything about a property that is not owned by them. It is however their duty to find out as much information about the property as they can to assist with the progression of the transaction. That said, it should be made clear to the buyer at the outset that the sale is by a Personal Representative, and this should be reflected in any responses to enquiries and information provided by them.
It is usual for a Personal Representative to provide in the contract for sale that they sell the property with “limited title guarantee”. This is a technical contractual term utilised in the sale of the property. A Personal Representative will not usually sell with full title guarantee due to their limited knowledge of the property.
The Personal Representative is obliged to ensure that the property is sold for the best possible price. Although the consent of the beneficiaries is not required to sell the property, unless the Will states that it is, it is advisable for any decisions to be discussed with them and to keep a written record of those discussions, particularly with respect to the agreed sale price and especially if it is agreed to sell the property for less than market value.
Failing to do so may lead to a potential dispute and the beneficiaries ultimately seeking to recover the difference from the Personal Representative.
The Personal Representative should check any existing buildings insurance relating to the property as this may not be valid or may have expired.
The policy may also need to be amended to reflect the fact that the property is unoccupied. The cover should be maintained, along with any relevant contents cover, until legal completion has taken place.
The contract for sale will generally specify that a property is sold with vacant possession on completion. This means that the Personal Representative must ensure that the property is cleared of all the deceased’s personal belongings and any rubbish prior to completion unless the purchaser has agreed to purchase any items or agreed to certain items being left.
This can be very time consuming therefore this should not be left until the end of the transaction as it may result in a delay to exchange or completion.
Alternatively, it may be agreed that the property is “sold as seen”. If this is the case, the Personal Representative must ensure that they have evidence of this agreement with the buyer.
What is a Grant of Representation?
A Grant of Representation should be applied for, via the Probate Registry, by the Executor named in the Will or by an Administrator, usually a family member, if there is no Will.
They may instruct a solicitor to do this on their behalf. The Grant of Representation gives authority to the Personal Representatives to administer the deceased person’s estate, including the sale of any property.
When do I need a Grant to sell a property?
If the property was owned only in the deceased person’s sole name, the Personal Representative will always need a Grant of Representation to enable them to sell the property or to transfer it directly to the beneficiaries.
If the property is held jointly or in several names, whether a Grant is required, will depend upon whether the proprietors opted to hold it as joint tenants or tenants in common.
Where a property is held as joint tenants, on the basis that notice of severance of the joint tenancy has not been served, the deceased person’s share will automatically pass to the surviving owner/owners irrespective of what the Will states. Therefore, in this instance, a Grant of Representation is not required.
If on the other hand, the property is held as tenants in common, the deceased person owns a specific and defined share in the property and therefore can leave their share to whomever they wish in their Will. Upon death, the deceased person’s share will therefore pass in accordance with their Will, or the Intestacy Rules if there is no Will.
You can find out whether a property is held as joint tenants or tenants in common by looking at the title deeds, if the property is unregistered or it will be evident by way of a restriction on the Register if the property is registered.
Where this applies, the property cannot be sold by the Personal Representative alone. The surviving owner(s) and the Personal Representative will jointly sell the property. A Grant may or may not be required depending upon the specific circumstances.
If a Grant is required, exchange of contracts and legal completion cannot take place until this has been received. The Grant should therefore be applied for at the earliest possible opportunity as it can take several months for it to be processed and produced.
The circumstances of the sale should be communicated to the selling agents and any prospective purchasers as they may not be prepared to wait.
Is there anything else that may restrict or hold up the sale?
If the property is registered at the Land Registry, then copies of the Title Register and associated documents such as the Title Plan can be easily obtained by the seller’s conveyancer.
They can then review the paperwork before issuing the draft contract paperwork to the buyer’s conveyancer.
If the property is unregistered, the Personal Representative’s first task will be to locate the title deeds to the property.
They may be held by the deceased, by their bank, or perhaps by a law firm that acted for the deceased in the past.
Proceeds of Sale
Once completion has taken place it is the responsibility of the Personal Representative to ensure that the sale proceeds are distributed in accordance with the deceased person’s Will or the Intestacy Rules.
On receipt of the completion monies from the buyer’s conveyancer and once legal completion has been confirmed, the seller’s conveyancer will usually pay the estate agents fees and redeem any mortgages.
The balance of completion monies will then be transferred to the Personal Representative to enable them to deal with the distribution of the deceased’s estate.
Many estates include property, and the Personal Representatives will need to deal with this alongside all other aspects of the deceased’s estate.
It can be complicated and overwhelming to be faced with so much responsibility and as such many choose to instruct a solicitor to assist them with the process.