What happens to your property when you die?

Dealing with a loved one’s estate when they die can be challenging, especially during an already emotional time. When we talk about person’s estate, we are referring to everything they owned, such as their possessions, money and property. 

Here, we focus on what happens to the deceased’s property, whether wholly or part owned, on their death. 

How is the property owned?

The way a property is owned determines what happens next. In most cases, ownership falls into one of three categories: Joint Tenants, Tenants in Common, or Sole Ownership.

If the owners were Joint Tenants, generally the surviving party has the ‘Right of Survivorship’ and the deceased’s shared is automatically passed to them. Should the surviving party then wish to sell the Property or transfer it into their sole name, they would need to evidence the death by production of a death certificate to the Land Registry. A grant of probate is generally not required.

If the property was held as Tenants in Common, each owner has a defined share. The surviving party would retain their share while the deceased’s share would pass under the terms of their Will – or under the intestacy rules if there is no Will.

If the deceased owned the property outright, the property will then need to be transferred to new owners depending upon the terms of the deceased’s Will or under the intestacy rules if no Will exists.

Is a Grant of Probate necessary? 

Even though ownership can pass without the need for probate, the property cannot be sold or transferred until a Grant of Probate is (or Letters of Administration are) issued. The Grant gives the Executor or Administrator the legal authority to sell or transfer the property.

How do I obtain Grant of Probate? 

Executors are the people named in a Will to carry out the deceased’s wishes. They effectively ‘step into the shoes’ of the deceased to manage the estate.

To obtain a Grant of Probate, Executors must:

• Have the property valued (often by a RICS‑registered valuer for accuracy)
• Assess debts and tax liabilities
• Apply to the Probate Registry for the Grant

Once the Grant is issued, the Executors can legally sell the property.

What if there is no Will?

Where no executor is appointed or there is no Will, the court must appoint an administrator to legally hold property on behalf of the deceased. The key points to remember here are:

• The Administrator only gains legal authority once the court issues the Grant of Letters of Administration
• Until then, the property is temporarily held by the Public Trustee to protect the estate
• Once appointed, the Administrator can deal with the property in the same way an Executor would

Selling the property

When a sale has been agreed, Executors or Administrators can instruct a Conveyancer to act for them and handle the legal work to transfer the title of the property to the proposed buyer. 

Conveyancers will treat the Executors or Administrators as their client and will onboard them in the usual manner, as well as obtaining identification documentation to ensure they have the authority to sell the property. 

Once the property has been sold and money has been transferred to the Conveyancer, the proceeds from the sale will be paid to the Executors or Administrators. As an Executor or Administrator, you should read the Will carefully or familiarise yourself with the intestacy rules to make sure that net proceeds are dealt with properly. The Will for instance could deal with the net proceeds as a specific legacy or they may fall into the residuary estate. If the latter, you need to be careful about paying monies out before all tax and other liabilities have been paid.

Need help navigating probate or selling an estate property?

If you’re dealing with a loved one’s estate and aren’t sure where to start, you don’t have to manage it alone. From understanding ownership to obtaining probate or completing the property sale, our team can guide you through each step,

For more information on any of the issues raised in this article, please contact Ore Smith, Solicitor in the Private Client department, or if your queries relate to selling a property, please contact Clare Gardner, Associate in the Residential Property team.