Impact of probate on conveyancing process?

Dave_5150

Can anyone help me understand what is possible in relation to the legal process for a house sale before a lack of a grant of probate becomes an issue.

I was lead to believe probate would only become a barrier at the point of exchange and completion. I expected conveyancing would take at least as long as the eight weeks GOV.UK quote to process an online probate application, and I thought the two processes would simply converge after around eight weeks.

In reality we are six weeks in and the legal teams have been at deadlock since the week two. The buyers solicitors willl not raise enquiries until they have a draft contract. Our solictor says they have sent everything needed to raise enquiries but they can't draft a contract as it must be worded in accordance with the grant of probate.

Can anyone clarify what should be possible in terms of the conveyancing process before receiving grant of probate please? Any tips to help unblock this would be great too.

jonnydeppiwish!

Unfortunately, when it comes to probate, how long is a piece of string? For a simple probate, it may take 6 weeks, but complicated can take upwards of a year. 

Your solicitor is quite correct to wait until probate is confirmed. If you don’t have a house to sell, then sit tight and wait for probate.

BooJewels

The Grant of Probate is a legal document issued by a Government court that states that particular individuals have the right to make certain legal decisions or take particular actions - after examining the Will etc.  In a house sale, it's a legal declaration that the executors, or whoever applies for Probate, have the right to sell the property, as the officially recognised representatives of the deceased.

Hence, not having it is a stumbling block to proceeding with the legal aspects of the sale.  The names on the Grant go onto the various documents necessary for the sale - such as the contract - so the Solicitor can't start drawing them up until they have that data, established through the proper channels.

So I think it would always be a better idea to get Probate, then put a property up for sale.  Not doing so just seems to create distress for all parties.  The estate agent we intended using made this suggestion when we got him in for the Probate valuation.  If nothing else, having the wording on the sale particulars 'probate pending' or 'awaiting probate' would put a lot of potential buyers off. So we got Probate completed before we put an estate property up for sale and it still took a lot longer than 8 weeks to complete - with no chain and cash buyers.

I have no legal training, just been through it recently myself.

doodling

Hi,

It is not clear why your solicitor cannot use some placeholder text in the draft contract. Presumably the only thing they require from the Grant of Probate is the name of the executor who will be selling the house. If you have a copy of the will then there is no reason why they cannot proceed to draft the contract on the basis that probate will be granted in accordance with it which may be better than using placeholder text.

They need to explain to you why they cannot do either of the above.

I can think of two reasons: 1) They are not general solicitors but "conveyancers" and cannot cope with doing anything out of the ordinary or 2) They don't want you or the buyer to incur additional cost if the contract has to be modified because the Grant of Probate is different to what they expect it will be. Neither of these should be a show stopper but may affect costs.

I suppose the buyer's solicitor might advise them that without probate there is no evidence that you have the right to sell the house and therefore, even if your solicitors produced a draft, reviewing it would potentially be a waste of time and money - again, it is then down to the buyer's whether they want to risk that cost.

The answer might be a discussion with the buyers, once your solicitors have explained their reluctance, where you can agree how both of you will instruct your legal representatives and both of you can understand the risk of wasting money if you press ahead.

Dave_5150

doodling said:

It is not clear why your solicitor cannot use some placeholder text in the draft contract. Presumably the only thing they require from the Grant of Probate is the name of the executor who will be selling the house. If you have a copy of the will then there is no reason why they cannot proceed to draft the contract on the basis that probate will be granted in accordance with it which may be better than using placeholder text.

They need to explain to you why they cannot do either of the above.

Thank you, this is really helpful.

I will drop my solictors an email today to see whether they can either draft the contract in accordance with the will, or using placeholder text.