Who determines whether a deceased person's property can be sold without probate? [closed]

Question

My Grandmother died earlier this year. She lived in a property from 1960 onwards with her husband (my Grandad) who died in 2019. They had one child (my Dad) who died, unexpectedly, in 2017. My Dad had 2 children: myself and my sister. We are all British citizens and have lived in England for the duration of our lives. The property is in the England so this question applies to the laws there.

My grandparents had a Property Trust Will and lived as Tenants in Common as part of that arrangement.

My sister and I are selling the property they lived in. We have 2 solicitors, who are separate individuals, but who work at the same solicitors firm.

The solicitor dealing with my grandparents Will advised that my sister and I would need to wait for a Grant of Probate before we would be able to complete on the sale of the property. They did however advise we were able to market the property for sale, secure a buyer etc, as long as we advised the buyer we would not be able to complete on the sale until probate had been obtained.

We found a buyer and negotiated a price within a couple of weeks of putting the property up for sale. The matter is progressing and nearing exchange of contracts.

The second solicitor - who is dealing with conveyancing of said property - advised that we would be able to complete on the sale without obtaining probate first. They said the reason for this was

the sole surviving named proprietor on the Title of the property, even as a trustee, can action the sale without probate being granted.

On the Title for the property - from HM Land Registry - it states in Section B that in March 2020 the "proprietor" was my Grandmother, and my sister. The date of this is after my Grandad's death, but before my Grandmother's death. We understand this occurred as part of the arrangements in my Grandad's Will being executed, i.e. the Property Trust Will.

There are 2 "restrictions" on the Title, which also have the same date in March 2020 mentioned above.

No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

No disposition by the proprietors of the registered estate is to be registered unless one or more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificates, that the disposition is in accordance with the Trusts declared at Clause 4 of the Will dated ___ of ___ or some variation therefor referred to in the declaration statement or certificate.

Where I've put ___ above it states my Grandad's name and the date his Will was written.

I have several questions about this:

1. Who is responsible for determining whether my sister and I are actually allowed to sell the property under these circumstances?
2. Is the second solicitors advice that my sister and I can sell this property without having obtained probate correct?

My sister and I have provided ID to the solicitors firm we are using and our estate agent. Given that the first solicitor was dealing with matters since my Grandad's death in 2019 they are aware of the full history of the matter, including seeing Death Certificates for both of my Grandparents.

Answer 1

This is a complex question, and it would be against the rules to address your personal situation. But fundamentally, the entity which determines whether registered land can be sold without a grant of probate is HM Land Registry.

To complete the sale of registered land, the registered proprietor must execute a Form TR1 which is accepted by HM Land Registry for registration. Section 3.4 of the guidance on completing Form TR1 says that "if one of the joint owners has died, you will need to send us the death certificate or grant of probate." The distinction between death certificate and grant of probate is reflected in the Land Registration Rules 2003:

• Rule 162 provides that a transfer executed by an executor "who is not already registered as proprietor, must be accompanied by the original grant of probate."

• Rule 164 provides that "an application for … the removal from the register of the name of a deceased joint proprietor … must be accompanied by evidence of his death."

The general principle for registered land is that "the register records the ownership of the legal estate, not the beneficial interests" and "as far as possible, references to trusts should be kept off the register": section 1.3 of practice guide 24. Therefore, HM Land Registry will allow the sole surviving proprietor to remove the deceased proprietor's name from the register, and deal with the land as their own: section 3 of practice guide 6. Enforcing the surviving proprietor's obligations as executor, or trustee of an equitable tenancy in common, is in principle a matter for the beneficiaries, not the registry or purchaser of land.

However, restrictions are commonly registered to protect such interests, including in the standard forms quoted in the question. These are described in practice guide 24 as Form A and Form B. Their effect is rather complex, but on its face, the Form A restriction seems to prevent the sale of property by any sole proprietor who holds as trustee, because this could breach a somewhat arcane prohibition on payment of capital to fewer than two trustees in section 27(2) of the Law of Property Act 1925: section 2.1.1 of practice guide 24.

Section 6 of practice guide 6 suggests that, upon the death of one of two proprietors of an estate with a Form A restriction, "where the land continues to be held on trust a second trustee should be appointed to act with the surviving proprietor." Whether this is possible will depend on the terms of the trust. Section 6 of practice guide 24 provides detailed guidance on the procedures for cancelling a restriction which is no longer required, or withdrawing a restriction with the consent of all beneficiaries. These procedures do not necessarily require a grant of probate.

As noted in the Form TR1 guidance, "joint ownership is a difficult area of the law." It would be inappropriate to comment on the procedure which should be followed in the circumstances of this question. It is important to highlight that HM Land Registry's guidance documents are "aimed primarily at solicitors and other conveyancers," and reiterate the importance of getting advice from a registered professional, rather than anonymous internet users, when executing a legally complex real estate transaction.