Death of Sole Seller
The death of one of the contracting parties between contract and completion does not affect the validity of the contract. The burden and benefit of the contract simply pass to the Personal Representatives who are then bound to complete.
As the Personal Representatives must wait for Grant of Probate to be issued this can cause delays in progressing the matter. A delay in obtaining the Grant will have adverse consequences. If completion does not take place on the contractual completion date then there will have been a breach of contract. This means that compensation or damages will be payable to the other party.
A delay can also affect a buyer who is in a chain. The buyer may be forced to complete on his sale but without being able to simultaneously complete on his purchase. Any damages as a result of this can be claimed for from the seller’s Personal Representatives.
If the seller’s Personal Representatives fail to complete on the contractual completion date and time was not made of the essence, a Notice to Complete can be served on the Executors requiring them to complete within 10 working days.
Probate can take months to be granted. However, if there is something such as a pending sale then a request can be made for the Grant of Probate to be issued on an expedited basis. Generally, probate cannot be issued within 7 days of death, however, there is an exception in emergency cases but it must be with the permission of two registrars. If damages are to be claimed against the Estate then permission will, generally, be granted. The Probate Registry Office has a helplines and they provide advice and assistance with probate related enquiries so they can be contacted as soon as the situation arises.
In any event, as soon as the seller dies, the seller’s conveyancer should immediately inform the other party (or parties, where there is a chain transaction). It may be that the parties can agree on postponing completion where it has been decided that the Grant of Probate is to be applied for on an expedited basis.
Another way to get around the problem would be for the Executors named in the Will to negotiate allowing the Buyer to take possession of the Property upon payment of a Licence fee. This fee could then be offset against any compensation payable by the Personal Representatives due to late completion.
Death of a Co Owner
The deeds should be checked carefully to see whether the property was owned as ‘beneficial tenants in common’ or ‘joint tenants in equity. ’
Surviving Beneficial Joint Tenant
Where the property is owned as ‘joint tenants in equity’, on the death of one co –owner, the other will automatically become the sole owner of the property under the Survivorship Rule. This means that the property can be sold by the surviving co-owner without any difficulty. The death certificate would have to be produced as evidence and supplied to the Buyer’s conveyancer and the Transfer would have to be amended accordingly.
Beneficial Tenants in Common
Where the property was owned by two beneficial tenants in common, e.g. husband and wife, and one of them dies, another Trustee must be appointed to act with the surviving tenant in common, as, there must always be two Trustees of the legal estate. This can be done by way of a separate deed or by a separate provision in the Transfer.
If there were more than two tenants in common in the first place and one passes away then the surviving two can go ahead with the sale with minimal delay.