Can the executor sell a house before probate is granted?

Can a property go sale agreed with contracts signed while probate is ongoing ? And the closing date linked to the receiving of the grant ?

Thanks

Broadly, yes to both.

Contracts can be signed by an Executor where there is a will. Their authority to do so stems from the will which speaks from date of death of the deceased.

An Administrator ( that is where there is no will) derives their powers from the Grant. An Administrator has no power to sign a contract.

The actual Grant ( Probate/Administration) is always needed to complete a sale.

mf

Hi mf1

In practice, what happens?

Presumably the Executor signs the contracts for sale subject to probate being granted?

What happens if there is a 2 year delay in granting probate?

As a buyer would I put in a clause "I will buy this house for €x subject to the seller completing the sale within 3 months" ?

Brendan

It depends............

See my standard Contract Special Condition below

"The Vendor is selling in his capacity as Legal Personal Representative of the Estate of M P F and will assure the property in such capacity. The Vendor has applied for a Grant of Probate in the estate of the deceased owner and the closing date herein shall be seven days after the Purchasers’ solicitor has been notified by the Vendor’s solicitor that the Grant of Probate has issued."

It should be fairly obvious to the Vendor's solicitor if there is likely to be problems, or a long delay, with Probate. Grants in Dublin are currently taking up to 20 weeks to issue and that is without problems arising.

Depending on the buoyancy (or otherwise) of the property market, the parties can/should negotiate on a time limit within which a prospective purchaser can withdraw if Probate has not issued.

The Probate Office will not expedite a Grant just because a house is for sale.

mf

mf1 said:

It depends............

See my standard Contract Special Condition below

"The Vendor is selling in his capacity as Legal Personal Representative of the Estate of M P F and will assure the property in such capacity. The Vendor has applied for a Grant of Probate in the estate of the deceased owner and the closing date herein shall be seven days after the Purchasers’ solicitor has been notified by the Vendor’s solicitor that the Grant of Probate has issued."

It should be fairly obvious to the Vendor's solicitor if there is likely to be problems, or a long delay, with Probate. Grants in Dublin are currently taking up to 20 weeks to issue and that is without problems arising.

Depending on the buoyancy (or otherwise) of the property market, the parties can/should negotiate on a time limit within which a prospective purchaser can withdraw if Probate has not issued.

The Probate Office will not expedite a Grant just because a house is for sale.

mf

Click to expand...

MF - can the solicitor make a submission to the probate office too expedite the matter ?

Pinoy adventure said:

Can a property go sale agreed with contracts signed while probate is ongoing ?

Click to expand...

Hi Pinoy

Just reading your first question again.

To be absolutely clear - going sale agreed means very little in Ireland. So either party can pull out at any time. So, yes the Executors can go sale agreed any time they like.

They can exchange contracts as well, as MF1, has pointed out, but they can't close those contracts until probate has been granted.

As a practical example, the Executor can agree to sell the house to the daughter of the deceased who is living in it. But that has no legal obligation on either side. Probate is irrelevant.

But the Executor can exchange contracts with the daughter of the deceased which binds both the Executor and the daughter although they won't be able to transfer ownership until Probate has actually been granted.

Brendan

Pinoy adventure said:

MF - can the solicitor make a submission to the probate office too expedite the matter ?

Click to expand...

See below. Yes- a solicitor can apply to expedite but really shouldn't - the boy who cried Wolf! and all that.

The Probate Office will not expedite applications unless there are exceptional circumstances. House sales are not regarded in themselves as exceptional events.

I did have one quite exceptional set of circumstances where the Vendor was selling as Attorney on foot of an Enduring Power of Attorney by her mother, the Donor. The Donor died very suddenly after Contracts were signed by the Purchasers but before the Attorney had signed.

mf

Updates & Changes to Probate Procedures - January 2021​

Waiting times for Probate applications​

The waiting times for applications is presently running at eighteen to twenty weeks. The increase in waiting times is due to Covid restrictions which have caused additional workloads and have increased the time taken to check applications. Practitioners should not contact the Probate Office requesting updates on their applications unless the waiting time exceeds these waiting times. It is unlikely that these waiting times will reduce in the short term. Any change will be notified by way of notice placed on the Probate Section of the Courts Service website.

When placing properties for sale practitioners should take account of this waiting time. The Probate Office will not expedite applications unless there are exceptional circumstances. House sales are not regarded in themselves as exceptional events.