Selling a Mortgaged House Before the Grant of Probate

You can sell a house before probate in almost every practical sense except the last one. You can put it on the market tomorrow, hold viewings, accept an offer, instruct a conveyancer and let the buyer's surveyor through the door. What you cannot do is complete — the day the money actually moves and the mortgage is redeemed — until the grant of probate is in your hands. That is the line, and it does not bend for grief, for a motivated buyer, or for a lender writing letters.

There is one large exception, and it is worth checking before you assume you are waiting for anything at all. If the house was owned as joint tenants with someone still living, it passes to the survivor automatically on death, and no grant is needed to sell it. The mortgage still has to be dealt with, but the probate queue does not apply to you.

For everyone else — a house in the deceased's sole name, or held as tenants in common — the sale can be prepared but not finished. Meanwhile the mortgage carries on charging interest every day of the wait, which is why the question families really want answered is not "can we sell" but "what does the delay cost us".

What you can do before the grant arrives

Far more than most families assume. Nothing in law stops you preparing a sale while the application is pending, and the whole point of doing so is that the two waits then run alongside each other rather than one after the other. Families who wait for the grant before instructing an agent add months to the end of an already long process for no reason.

You can instruct an estate agent and market the property. You can hold viewings, receive offers, accept one and issue a memorandum of sale. You can instruct a conveyancer, who will obtain the title from HM Land Registry and put together the contract pack. The buyer can carry out their searches, commission a survey, apply for their mortgage and receive a formal offer. Enquiries can be raised and answered. A completion timetable can be agreed in principle, expressed as a number of working days after the grant is issued rather than as a fixed calendar date.

Two jobs are worth starting immediately, because they are slow and nobody thinks of them until they become the hold-up. The first is a valuation of the property as at the date of death, which is needed for the inheritance tax account in any event and which also tells you whether the asking price is realistic. The second, if the property is leasehold, is the management pack from the freeholder or managing agent, which routinely takes weeks to arrive and which no buyer's solicitor will proceed without.

What you cannot do, and why completion is the hard line

A buyer is not being difficult when their solicitor refuses to complete without the grant. They are protecting themselves from something quite specific: handing over the purchase price to people who cannot lawfully transfer the title.

When someone dies owning land in their sole name, the legal title does not simply pass to the family. It passes to their personal representatives, and HM Land Registry will register a transfer by those personal representatives only where it has evidence of their authority. That evidence is the grant of probate, or letters of administration where there is no will. Without it there is nothing the registry will accept, and the buyer would have paid in exchange for a document that cannot be registered.

Exchange of contracts is the grey area, and different conveyancers treat it differently. In principle an executor derives authority from the will itself, with the grant confirming that authority rather than creating it, so an executor can contract to sell before the grant is issued. In practice most conveyancers will not exchange with a fixed completion date until the grant is in hand, because a personal representative who promises to complete on a date they do not control is exposed to a claim if the grant is late. Where a chain forces the issue, the usual compromise is to exchange with completion set a fixed number of working days after the grant is received. The mechanics of that decision, and the ways it goes wrong, are set out in more detail in our guide to marketing a probate house when you cannot yet complete.

Where there is no will, the position is harder and the advice is simpler. An administrator has no authority at all until letters of administration are granted; until then the estate vests in the Public Trustee, and there is nobody who can validly contract to sell. If there is no will, prepare the sale, but do not commit to it.

The cases where no grant is needed at all

Before you join the queue, check how the property was actually held. It is recorded on the title register at HM Land Registry, and the answer changes everything that follows.

If two or more people owned it as joint tenants, the deceased's interest passes automatically to the survivors, outside the will and outside the estate. The survivor can sell without any grant. All that is needed to bring the register up to date is a death certificate and HM Land Registry's form for removing a deceased joint proprietor, which is free to lodge.

If it was held as tenants in common, the position looks similar on the surface and is not. The surviving co-owner holds the legal title alone, but a sole surviving trustee cannot give a valid receipt for the purchase money on their own. Either a second trustee has to be appointed to join in the sale, or the deceased's personal representatives have to — which brings the grant straight back into it. The tell-tale sign is a restriction on the title register requiring the receipt of two trustees, and a conveyancer will spot it in the first week.

If the property was in the deceased's sole name, a grant is always needed in order to sell, however small the estate and however obvious the outcome feels to the family.

What the wait actually costs while the mortgage runs

This is the part nobody budgets for. A mortgage does not stop on death, and it does not stop while an estate is being administered. Interest accrues daily on the outstanding balance, the monthly payment stays due, and if it is not paid the account falls into arrears in the ordinary way. Lenders have bereavement teams and most will agree some form of concession while a property is being sold; some will hold interest for a period. What none of them do is treat the debt as suspended because an application is sitting with the probate registry.

Around the mortgage sit the running costs of a house nobody lives in, and they are easy to underestimate:

• Buildings insurance. Most policies restrict cover once a property has been unoccupied beyond a set period, often requiring the water to be drained down and the property inspected at intervals. Tell the insurer it is empty rather than hoping it will not come up, and read the conditions before something goes wrong. The practical steps are covered in clearing the house before probate without voiding the insurance.
• Council tax. There is usually a short exemption for a property left empty after a death, and it ends. Long-term empty homes can then attract a premium rather than a discount, and the rules are set locally, so the only reliable answer comes from the council itself.
• Leasehold charges. A flat keeps owing service charge and ground rent whether or not anyone lives in it, and a major works demand can land on an estate with no cash in it. That problem is dealt with separately in who pays the service charge and ground rent after a leaseholder dies.
• Title problems nobody knew about. A sale can also stall for reasons that have nothing to do with probate, such as a freehold held by a company that has been struck off the register. If the flat has a share of freehold, read what happens when one of the share-of-freehold owners dies before you market it, not after.

Whether the wait is bearable usually comes down to who is still paying. A surviving partner carrying a mortgage on one income while nursery fees continue is in a different position from an adult child clearing a parent's empty house, and the choices differ accordingly — we have set out the first of those in one parent, one wage, nursery fees and a mortgage. Where several people have inherited and one of them lives in the property, the arithmetic changes again, and so does the argument; three siblings inheriting a house where one of you lives in it deals with that head on.

How long the grant itself takes is not a fixed number, and anyone who quotes you one is guessing. It depends on whether the application is made online or on paper, whether the original will is available, whether inheritance tax has to be reported and paid before the grant can issue, and whether the case is stopped for a query, which is the single largest cause of long delays. HM Courts and Tribunals Service publishes average timescales from application to grant, and it is worth looking at the current figures rather than relying on what a friend was told two years ago. Applications are made through the GOV.UK probate service.

Source: HM Courts and Tribunals Service, Family Court and probate management information, published quarterly under the Open Government Licence v3.0.

How families actually pay the mortgage in the meantime

Money in the deceased's sole name is frozen the moment the bank is told about the death, which is precisely when the payments still need making. There are three usual routes through that gap, and they are not equally good.

The first is to ask the bank to release funds from the deceased's own account directly to the lender. Banks will often do this for defined estate expenses without waiting for a grant, each setting its own threshold and its own paperwork. It is worth asking specifically, in writing, rather than assuming the account is untouchable.

The second is that a family member pays from their own money and reclaims it later. This works, and it is what happens in most estates, but do it properly: keep every receipt, record what was paid and when, and treat it as a debt owed by the estate rather than a gift to it. Reasonable expenses of administering an estate rank ahead of the beneficiaries. Be careful, though, where the estate may not cover its debts. If it is insolvent, paying creditors out of your own pocket in the expectation of reimbursement is a way of turning someone else's problem into yours.

The third is life cover, and it is the only one that arrives on time. A policy written in trust pays out to the trustees rather than into the estate, which means it does not wait for the grant and does not form part of the estate for inheritance tax. That is the difference between having the mortgage covered from the first month and borrowing from relatives for six. If you are reading this because a death has exposed a gap, and you want to know what it would take to close it for the people still named on a mortgage, you can get life insurance quotes and have an FCA-authorised broker price cover against the actual balance and term. Whether cover can be offered at all, and on what terms, depends on underwriting.

Keeping the buyer while you wait

Probate sales collapse for one reason more often than any other: the buyer was not told at the start, and left four months in when a delay they had never agreed to turned out to be open-ended.

So say it in the listing. Say it again when you accept an offer, in writing, together with the date the application was submitted. Buyers who know from the outset that they are buying a probate property are usually patient, because they have built the wait into their own plans. Buyers who discover it later feel misled, and they walk.

A few things make the wait easier to hold together. Give the buyer's solicitor everything you can early, so that the only outstanding item at the end is the grant itself. Update the buyer at fixed intervals even when there is nothing to report, because silence is what makes people assume the worst. If the buyer's own mortgage offer is due to expire before the grant is likely to arrive, raise it early — extensions are usually possible, but not at two days' notice.

Expect the same document to be the bottleneck everywhere, not just on the house. Shares, investment accounts and anything else registered in the deceased's sole name all stall until the grant is issued, for exactly the same reason, as we have set out in share certificates in a drawer and no grant of probate yet. Where the property is a shared ownership home there is a further layer, because the housing provider usually has the first opportunity to find a buyer for the share — see who pays the shared ownership rent after the owner dies. Free and independent help with mortgage difficulty is available from MoneyHelper and Citizens Advice, neither of which sells anything.

Scotland and Northern Ireland

The principle holds across the UK — you cannot transfer a dead person's property without proving your authority to do it — but the document, the court and the timing all differ, and the differences matter more than families expect.

In Scotland the grant is called confirmation, and it is obtained from the sheriff court rather than a probate registry. The executor is either executor-nominate, named in the will, or executor-dative, appointed by the court where there is none. Timing matters more in Scotland than it does south of the border, because a Scottish sale becomes binding when missives are concluded, and that happens earlier in the process than exchange of contracts does in England and Wales. An executor should not conclude missives before confirmation has been obtained. And where the title contains a survivorship destination, the deceased's share may pass to the survivor automatically, whatever the will says.

In Northern Ireland the grant is issued by the Probate Office of the High Court in Belfast, and land is registered through Land Registry Northern Ireland or, for older titles, the Registry of Deeds. The succession rules and the intestacy shares differ from those in England and Wales. The completion rule is the same everywhere: no grant, no transfer.

The rest of this topic, including what a surviving borrower is liable for and how far a lender can push while an estate is being wound up, is collected in our guide to mortgages and property when someone dies.

Frequently asked questions

Can you sell a house before probate is granted?

You can market the property, accept an offer and progress the legal work, but you cannot complete without the grant, because the buyer's solicitor needs proof that the sellers can lawfully transfer the title. Where the house was owned as joint tenants and passes to a surviving co-owner, no grant is needed at all and the sale can go ahead normally.

Will a buyer wait for probate?

Many will, provided they are told from the outset and can see that the application has been submitted. Being open about the timescale in the listing is what prevents a buyer walking away months in, which is the usual reason probate sales collapse and have to be started again from the beginning.

Who pays the mortgage while we wait for the grant?

The payments remain due, so they come either from estate funds where the bank will release them, or from family members who can later reclaim the money from the estate as an expense of administering it. Tell the lender early, because many will agree a concession during the administration and some will hold interest for a period.