Being appointed the executor of a will can be a great honour. If the owner has stated in their will that they want you to have this responsibility, it is a sign of the trust they had in you.
However, if you are named in the will as the executor, it does not give you the automatic right to take ownership or control of the property. You might need to apply for a grant of probate, depending on what the deceased owned.
It is up to the executor of a will to make sure that the possessions of the owner, including any property, go to the right person or people (beneficiaries) in accordance with the deceased owner’s wishes.
Applying for a grant of probate
You cannot apply for a grant of probate until the death has been registered and the correct amount of inheritance tax has been paid on the estate. Calculating inheritance tax can be complicated, so it would be a good idea to speak to a specialist tax advisor for help. Some licensed conveyancers and conveyancing solicitors may be able to provide limited advice on inheritance tax. The legal and tax advice costs can be paid out of the deceased’s estate rather than your own money.
You can apply for a grant of probate online once you have the original will, the original death certificate, or an interim death certificate where a coroner is conducting a post-mortem, and the completed inheritance tax return.
The probate registry will keep the will as it becomes a public document. The contents of a will could be challenged by anyone who is disappointed that they are not beneficiaries. It would be up to a court to decide whether their claim was justified.
As the executor of the will, you are also required to put a notice in The Gazette, which is the official public record, and in a local newspaper so that anyone who believes they were owed money by the deceased can put in a claim to the estate.
Any legal action, from either potential beneficiaries or creditors, can cause a delay in the transfer of property to beneficiaries named in the will. As executor, you will have to defend against such claims, and any legal costs can be paid out of the deceased’s estate.
When don’t I need to apply for a grant of probate?
Sometimes, depending on how the deceased owned a particular property, you won’t need a grant of probate.
For example, if a property was owned jointly by the deceased and someone else as a joint tenancy, then the deceased’s share of the property will automatically go to the other owner or owners and a grant of probate is not needed. This is often, but not always, what happens with properties owned by husband and wife or civil partners. However, if the property was co-owned as a tenancy-in-common, the deceased’s share of the property does not automatically go to the other owner or owners.
A grant of probate is also not needed if the deceased owned a property held in trust for the benefit of someone else, or if the deceased was a beneficiary of a property held in trust for him.
A conveyancing lawyer will be able to advise you on whether you need a grant of probate to transfer a particular property to the beneficiary or beneficiaries.
Executor transferring property to a beneficiary
Assuming no legal disputes are involved; you can contact a conveyancing solicitor to help transfer the property to the beneficiaries. A conveyancing solicitor will want to see a copy of the grant of probate to make sure that you have the right to transfer the property. If you decide not to use a conveyancing solicitor, you will need to apply to the Land Registry yourself using Form AP1 and send a sealed or certified copy of the grant of probate and a document called an Assent (Form AS1). If there is a lender involved, you will need to appoint a conveyancer to assist. The Land Registry will record the beneficiaries as the new owners of the property.
Executor selling property in accordance with a will
When selling a probate property, it may be difficult for you as executor to complete some of the property-related information forms. Complete as much as you can, and the buyers will need to take a view on matters you are unable to comment on.
Your conveyancing solicitor will need to see the original or certified grant of probate. Additionally, they will require your identity documents and proof of address, such as a utility bill or a bank statement, which must have been issued within the last three months.
Probate conveyancing involves different procedures from standard conveyancing. Whether you are buying or selling, appoint conveyancers who have experience with probate conveyancing. This will make the matter less stressful for you and quicker to complete. There could also be debts that need to be settled or potential disputes that need to be addressed, which can be complicated.
Acting as an executor can be stressful, especially if the deceased was also a loved one. Our experienced, friendly team of conveyancing solicitors at Phew Conveyancing can help you manage the process. Please contact us for free initial guidance.