Probate sales: What you need to know and do to make the process as painless as possible

If you are selling a house after the death of a loved one, or if you are bidding on a house that is part of an executor sale, then you need to know about probate.

Probate is the first step in sorting out who gets what after a death. Taking out probate means getting the Courts Service to certify that the person’s will is valid. Right now, Probate Office waiting times are very long – as of March 4th, the Probate Office was assessing applications received on October 21st last year. If you are selling or buying a house that is part of a deceased person’s estate, you need to take this time frame into account.

While there is not much you can do to get the Probate Office to speed things up, there are certainly steps you can take to avoid slowing things down further.

Have patience

When someone has died, usually one or two family members have been entrusted as executors, says Brian Dempsey of DNG in Stillorgan. Operating in the areas of Foxrock, Mount Merrion, Goatstown, Leopardstown and Kilmacud, up to 30 per cent of the house sales he handles are executor sales.

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“When you are dealing with probate, there is also the strong possibility that you are dealing with grief,” says Dempsey. “The job of the executor isn’t a particularly nice one. The role can require tough work and tough decisions where everyone’s feelings are a little bit heightened.”

[ Untangling a mess created by failure to put grandmother’s will through probate ]

If beneficiaries are anxiously waiting for a house to sell to settle debts, to access cash to pay off bills, or if there is a dispute among family members, every day of delay can make things harder and already-tricky relations more strained. Dempsey’s biggest tip is patience.

“Sometimes people want to get the house up [for sale] straight away. That doesn’t necessarily speed up the sales process, but it certainly does heighten the anxiety,” Dempsey says.

He advises families to heed the advice of their solicitor. “When the solicitor tells you it is the right time to go for sale, then it is,” Dempsey says.

“A little bit of preparation, too, means everyone is a bit calmer and decisions can be made easier for everyone.”

Before the Covid-19 pandemic, the Probate Office was issuing grants of probate in as little as three to five weeks from when the application was submitted, and houses regularly went to market when probate was pending. Applications are taking up to six months to process now, so putting the house up for sale too soon can have costly implications. Where a potential buyer’s mortgage approval is only valid for six months, or where interest rates are in flux, buyers and their banks can get tense.

“Six months is simply too long for a loan-approved buyer to wait,” says solicitor Niamh Moran, partner at Carmody Moran Solicitors. A buyer may pull out.

“If your sale then falls through, going to market a second time can be more of an uphill battle. Your house has a proverbial smell off it. There is a whiff of trouble when it goes back up for sale the second time and it can take longer to sell,” says Moran.

“It’s better to be ready with your grant of probate already issued before going to market.”

Where the deceased person has availed of the Fair-Deal scheme, the bill for care must be paid within 12 months or interest starts to accrue. This can add to stress and can make beneficiaries jump to sell too quickly.

“Solicitors sometimes have had to apply for deferrals and look for additional time when probate is still pending,” says Moran.

[ Buyer beware, especially when it comes to house purchases ]

Locate the title deeds

Would you know where to find the title deeds to your childhood home? Locating these is a priority.

“Title deeds are often very out of date or they are quite regularly lost or mislaid,” says Moran.

“Parents will have paid off the mortgage but they will have left the title deeds with the bank,” she says. Sometimes the deeds are at a solicitor’s office that has closed.

“You may need to find who took over the practice, or sometimes the deeds are just lost and you have to start reconstituting them. That’s possible, but you probably want to give yourself three or four months to do it,” Moran says.

Resolve planning issues

With probate sales, the owners may have lived in the house for decades, doing some renovations over the years.

“The planning code was very different in the 1970s to what it is now, and even in the past 15 years things have gotten stricter,” says Moran.

“It’s quite common that someone has covered over a passageway or put a sunroom out the back or built a porch to the front. Maybe they didn’t require planning permission, but the seller will still need an architect’s opinion of exemption or compliance.”

Once the house goes sale-agreed, the prospective buyer will engage a surveyor to ensure the place is structurally sound. Ad-hoc building works will be apparent and a surveyor will want to see proof of compliance.

“People may not realise these things are an issue until they sit down with a solicitor. The earlier you get it sorted out, the better,” says Moran. A seller can pre-empt delays in the sales process by engaging their own building professional to certify that any building works are compliant or to outline what is required to achieve compliance.

Sellers will also have to arrange a Ber certificate and provide the buyer’s solicitor with proof of local property tax compliance.

“Get your paperwork completed early and before you go to market and the whole process will proceed a lot smoother,” says Moran.

Organise PPS numbers

Where family members have scattered and some beneficiaries are emigrants, they need to ensure they have PPS numbers.

“If you are benefiting from a house sale, it has to go through Revenue and they will want to see everything is above board. It can take as long as probate to get a PPS number,” says Dempsey.

“I have seen people get very deep into the sales process and then find out they don’t have a PPS number. Without a PPS number, the whole transaction can’t go ahead.”

Clear the house

Readying the house of a deceased loved one for sale can be daunting. From bookshelves to cutlery drawers, to the attic full of old schoolbooks, there can be a lot of memories to sift through. Hiring a house clearance company that arranges for unwanted items to be recycled or given to charity can be a solution.

It usually entails a two-step process where family members will red-sticker items they want to keep. Some items, like dining tables, chairs and beds will be left in the home to stage it for sale but can then be removed after the sale, Dempsey says.

“Thirty years ago, people would have taken everything out of the house and used the majority of it. Now you will see them take a couple of heirlooms and the rest will go to charity,” he explains.

If the house needs painting or minor works to prepare it for sale, the solicitor can set up an account with some funds from the estate for the executor to cover these expenses, he says.

Be insured

Where the house insurance policyholder is deceased, the executor needs to inform the insurance company. The insurer will require the solicitor to confirm who the executor is so that the policy can be amended and continued.

If the house is unoccupied until it is sold, the insurance company needs to know. Not telling them may invalidate your cover while telling them may actually reduce the cost of cover.

“Every estate agent can tell you about a leak from the attic or a flat roof that blew off where the executor wishes they had told the insurance company that nobody was living in the house,” Dempsey says.

Streamline decision-making

Good communication between the executor and beneficiaries will keep things running smoothly. Some beneficiaries may be in no particular rush to receive their share of the house sale – others will want it done yesterday. They may have a view, too, as to what does and does not constitute a good sale price.

“Generally, beneficiaries don’t have to be kept updated with every offer that comes in, but when the executor has the final offers, best practice is to tell them,” Moran says.

“Beneficiaries don’t have to consent, the executor has the final overriding decision, but they just have to take into account the views of the beneficiaries. If you are in good communication with them before, it makes things quicker and easier. If you’re not talking to each other, it’s more stressful.”

Should buyers run a mile?

If you are a buyer interested in a house that is an executor sale, should you run a mile?

“No, but I would definitely ask what stage probate is at – has probate issued, and if it hasn’t, I’d be finding out what date the papers were submitted to the Probate Office. Potential buyers should ask those questions early on,” Moran says.

Loan offers have an expiration date and with interest rates in flux, waiting six to nine months after you go sale-agreed is a long period of time.