Selling House under LPoA. FiL died

poppystar

Linton said:

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.

But if OP has PoA for mother and as she is a tenant in common in the property there doesn’t seem to be anything stopping the sale from going ahead now. In fact it would seem sensible to prioritise this over getting Probate rather than lose the buyer. 

This assumes mother doesn’t have capacity - if she does she can sell it now anyway. 

clonkel

@poppystar I'm not sure about this. I have the LPoA and clinically/medically she has been declared as not having capacity.

She only owns half the house and the other half is effectively not owned by anyone until probate is granted. The executors all agree with the house sale and want it to go ahead but they do not have the authority until probate is granted. 

It would be great if she (meaning us on her behalf) could sell the house but I can't see how that is possible

thank you

poppystar

clonkel said:

@poppystar I'm not sure about this. I have the LPoA and clinically/medically she has been declared as not having capacity.

She only owns half the house and the other half is effectively not owned by anyone until probate is granted. The executors all agree with the house sale and want it to go ahead but they do not have the authority until probate is granted. 

It would be great if she (meaning us on her behalf) could sell the house but I can't see how that is possible

thank you

Ok, I assume this is what your conveyancer has told you. I was going by my personal experience of selling a house without probate after the death of one of the tenants in common, which was definitely possible and relatively straightforward. You would be doing this on behalf of your mother as her PoA not in your role as executor (therefore not needing the authority the Probate grant would give you).

Perhaps though there is some difference in the circumstances that haven’t been clear in this discussion that mean it is not possible for you. Do double check with a senior conveyancer/partner in the solicitors you are using as it is not a circumstance that all conveyancers have come across before. 

poppystar

This explains the situation that applied for me (in case this helps). A friend acted as the additional trustee. 

https://www.beswicks.com/legal-advice/what-happens-one-tenant-in-common-dies/

JGB1955

poppystar said:

This explains the situation that applied for me (in case this helps). A friend acted as the additional trustee. 

https://www.beswicks.com/legal-advice/what-happens-one-tenant-in-common-dies/

I did the same - sold my parents house (held as TIC) with POA for my father, my mother having previously passed away.  My husband acted as trustee for my late mother.  It was all dealt with very easily.

clonkel

@poppystar thank you. The link says:

It is worth noting that it is the remaining legal owners who have the right to conduct the sale of the property, not the beneficiaries of the deceased’s share.

@JGB1955 Thank you. Did you sell the house before probate was granted? I assume you needed Probate given that the house was held by TiC

Thank you

poppystar

Exactly that - it is the remaining legal owner (your mother/you as PoA for your mother) who has the right to sell the property. It is nothing to do with the executor of the deceased. 

Probate gives power to the executors of a Will to act. This would not be you doing this as executor for father so you don’t need probate. 

The PoA gives power to act for the living donor. 

You already have that power to act for your mother and could do so even if you were not an executor for father. 

clonkel

@poppystar thank you I will get in touch with our solicitor to explain the situation, and point them in the direction of the sale going ahead with me as the LPoA holder for MiL.

 The solicitor has had sight of the original LPoA for MiL.

poppystar

clonkel said:

@poppystar thank you I will get in touch with our solicitor to explain the situation, and point them in the direction of the sale going ahead with me as the LPoA holder for MiL.

 The solicitor has had sight of the original LPoA for MiL.

Good luck. Hope you get it sorted as if you have a buyer it would be a shame to delay. Once the sale is over you can then change hats to executor and get probate if needed for anything father’s estate.

clonkel

@poppystar thank you. I will update the thread when I receive a reply from our Solicitor.