Seller passing away after exchange of contracts

Renegadecrab

Hi all

Hope someone might be able to help.

If a property is being sold by executors as the owner was not able to act for herself and after exchange she unfortunately passed away...would you still be able to complete without probate being granted as there were executors acting for her already with power of attorney?

I am concerned that we would have to wait for probate but if there is any way to proceed without it that would be incredible!

Thank you in advance.

Lee

AnotherJoe

Speak to your solicitor, I'm pretty sure that unfortunately you'll have to wait for probate.

https://www.co-oplegalservices.co.uk/media-centre/articles-sept-dec-2016/what-happens-when-someone-selling-a-property-dies/

The POA ceases after death so thats no help.

davidmcn

No, the fact there were attorneys (not "executors") acting prior to death makes no difference. After death, you need to wait until they've got probate.

Is this a hypothetical question? Generally at the moment solicitors are recommending simultaneous exchange and completion, not particularly for this reason but it would avoid the problem.

UnderOffer

Power of attorney ceases at the time of death. Probate would have to be granted before the sale could complete. This exact scenario happened to an elderly family member, unfortunately it took 6 long months for the grant of probate and the sale to finally complete. Family member had to complete on their sale and vacate their home but had no where to go, only their storage fees were Eventually  refunded as the stress was too much for them to pursue additional costs and they just wanted to get into the home they had exchanged on 6 months prior. 

xylophone

Do you mean that you have exchanged contracts on a property which was being sold by Attorneys on behalf of the Donor and the Donor has now died? The Donor was the sole proprietor?

The Attorneys are also named in her will as her Exors? Or  another person (or persons) is /are so named?

 In either case, if contracts have been exchanged then the death of the owner does not invalidate the deal.

However, assuming that the deceased was the sole owner, the exors will need to obtain Probate in order to complete the sale.

A delay in obtaining the Grant  could mean  that the sale does not complete on the day that the contract says it should. As a result the terms of the contract would have been breached.  This usually means that as purchaser you could be due compensation.

 You could presumably also claim for losses on a related sale –  if,for example,  you were required to complete the sale of  your own property without being able to complete on  your purchase.   I should think that in these circumstances the exors could  request the Probate Registry to speed up the process of issuing the Grant but with current restrictions in place this might not be possible.

The  alternative  would be to enter into negotiations with the other parties involved?

greatcrested

Renegadecrab said:

If a property is being sold by executors as the owner was not able to act for herself and after exchange she unfortunately passed away...would you still be able to complete without probate being granted as there were executors acting for her already with power of attorney?

If the 'owner' did not pass away till after Exchange, how could the executors have been selling...? Executors are not appointed till after the death!

If the attornies were selling prior to Exchange, and prior to the death, their authority under the POA ceased at the time of the death.

The executors will normally be unable to Complete until Probate is granted. See

https://www.co-oplegalservices.co.uk/media-centre/articles-jan-apr-2018/can-a-property-be-sold-before-probate-is-granted/

bucksbloke

@Renegadecrab  If the seller exchanged contracts and then died after exchange of contracts, then the contract remains valid and the executors would be required to complete the sale. In effect the estate would be exchanging the property for cash, the cash would then sit in the estate for disbursement to any beneficiaries. 

bucksbloke

greatcrested said:

Renegadecrab said:

If a property is being sold by executors as the owner was not able to act for herself and after exchange she unfortunately passed away...would you still be able to complete without probate being granted as there were executors acting for her already with power of attorney?

If the 'owner' did not pass away till after Exchange, how could the executors have been selling...? Executors are not appointed till after the death!

If the attornies were selling prior to Exchange, and prior to the death, their authority under the POA ceased at the time of the death.

The executors will normally be unable to Complete until Probate is granted. See

https://www.co-oplegalservices.co.uk/media-centre/articles-jan-apr-2018/can-a-property-be-sold-before-probate-is-granted/

Disagree with the above link - it is relating to a house on the market post death, rather than something that has exchanged beforehand. See legal info at http://www.colemans.co.uk/residential-property-what-happens-if-the-seller-dies-between-exchange-and-completion/

Renegadecrab

I am buying a house currently and very close to exchange, the brother of the owner informed me the owner is in very ill health and may not last very long. I want to push for exchange as I was already planning but they live 4 hours away and the house needs emptying so completion during COVID is an issue potentially. Maybe they are at tourneys rather than executors a that’s an error on my part but I think most of you got what I meant.

I am going to try and exchange and complete before she passes to avoid this but it sounds like if I can at least exchange with delayed completion and she passes that I could ask that they seek expedited probate to minimise the delay...

GDB2222

bucksbloke said:

greatcrested said:

Renegadecrab said:

If a property is being sold by executors as the owner was not able to act for herself and after exchange she unfortunately passed away...would you still be able to complete without probate being granted as there were executors acting for her already with power of attorney?

If the 'owner' did not pass away till after Exchange, how could the executors have been selling...? Executors are not appointed till after the death!

If the attornies were selling prior to Exchange, and prior to the death, their authority under the POA ceased at the time of the death.

The executors will normally be unable to Complete until Probate is granted. See

https://www.co-oplegalservices.co.uk/media-centre/articles-jan-apr-2018/can-a-property-be-sold-before-probate-is-granted/

Disagree with the above link - it is relating to a house on the market post death, rather than something that has exchanged beforehand. See legal info at http://www.colemans.co.uk/residential-property-what-happens-if-the-seller-dies-between-exchange-and-completion/

I don't doubt that the executors have to sell to the OP, but I don't see how they can give good title until they have probate?

davidmcn

Renegadecrab said:

I am going to try and exchange and complete before she passes to avoid this but it sounds like if I can at least exchange with delayed completion and she passes that I could ask that they seek expedited probate to minimise the delay...

It would be rather less messy for everybody involved if you went with simultaneous exchange and completion, rather than the parties getting themselves into a contract with no idea when completion can actually be achieved.