Selling House under LPoA. FiL died

clonkel

Hi, very sadly my FiL recently died. I am part way through the process of selling his house as I had the LPoA for Property and Finance (as did my wife). As he has died I understand that the LPoA is no longer valid and I have informed the OPG.

The house sale is at draft contract stage.

Can I allow the sale to continue or must I stop it until Probate is Granted?

thank you very much

Keep_pedalling

You can market the house but you can’t sell until you have probate. A lot of buyers will be put off if the sale if waiting probate so I would hang fire for the time being. Is an IHT return also required?

clonkel

@Keep_pedalling thank you. I assume no IHT return as we are below the threshold.

I would like to keep the sale going not least because MiL is also in care and we may need the funds in future to pay for her care.

For now I will 'leave well alone' but was concerned that it was illegal and what sanctions could be taken, if any, against me if indeed the house were sold prior to receiving probate.

thank you

Keep_pedalling

clonkel said:

@Keep_pedalling thank you. I assume no IHT return as we are below the threshold.

I would like to keep the sale going not least because MiL is also in care and we may need the funds in future to pay for her care.

For now I will 'leave well alone' but was concerned that it was illegal and what sanctions could be taken, if any, against me if indeed the house were sold prior to receiving probate.

thank you

You might not actually need probate, if the they owned the house as joint tenants then your MIL inherits by survivorship. If they owned it as tenants in common you would only need it if he left his share to someone else. 

DancingBadger

You can put the house on the market, but the conveyancing process can only go as far as raising the contract ready for exchange until you've obtained the grant of probate.  

If there's IHT to pay, be aware probate will take a bit longer to obtain.

I worked out the IHT and applied to HMRC for the necessary code before the property was put on the market - and also ensured the estate agent made all interested parties aware it was a probate sale.  I was surprised (and very lucky) that it sold in less than a week to people who were aware of the possible delays and happy to wait for as long as it takes.

NedS

You are correct in assuming that your Power of Attorney ended upon FiL death, so you no longer have any authority to act (as an attorney).

What happens next will depend how the property was owned.

If owned as Joint Tenants with MiL, then the property immediately passes to MiL and does not form part of FiL's estate so she can continue with the sale as the sole beneficial owner.

If owned as Tenants in Common, then the property falls to be part of FiL's estate, and the executors will need to gain probate before they can carry out the wishes of FiL as expressed in FiL's Will with respect to their share of the property.

Do you know how the property was held - Joint Tenants or Tenants in Common?

https://www.gov.uk/joint-property-ownership

Keep_pedalling

NedS said:

If owned as Tenants in Common, then the property falls to be part of FiL's estate, and the executors will need to gain probate before they can carry out the wishes of FiL as expressed in FiL's Will with respect to their share of the property.

Do you know how the property was held - Joint Tenants or Tenants in Common?

https://www.gov.uk/joint-property-ownership

If the surviving owner is left the other half or it is inherited by them under intestacy rules then probate will not be required even if it is owned as TiC. 

clonkel

@all thank you

I should have said that it is Tenants in Common and the 3 children, who are executors, will inherit equally

I have never carried out a probate before but it looks quite straightforward given that he had cash (joint bank ac and NSandI in his own name) and half a house. I have been looking after his finances for 4 + years so have all of his details such as pensions etc. and with the Tell Us Once system I feel it is 'do able'. I say this as once we have registered the death I can get on with it. Currently probate application is saying 12 weeks for non-electronic submissions but not sure how long for electronic.

The buyer is a first time buyer so may not have to wait too long or maybe I'm being naïve.

I have the LPoA for MiL who does not have capacity so I can deal with anything on that side if needs be.

thank you again

p00hsticks

clonkel said:

Currently probate application is saying 12 weeks for non-electronic submissions but not sure how long for electronic.

I did an electronic submission a few months ago and it was around 2-3 weeks. 

Linton

PoA ends on the death of the donor. So you as the former PoA have no authority to do anything with the house.

If you are also the executor  then you have the authority to safeguard the house and can sell once it is permitted by Probate.

RAS

Do this on-line but do check for anything that might look dodgy with the will. The worst delays here seem to have been round pages not stapled together and queries about witnesses.

Keep your buyer informed of the date you apply and that it is an electronic application.