Conveyancing, Probate & Power of Attorney

[Phaeton]

My aged father is not well, he seems to be on a downward trend & we are not sure if he will recover or this will sadly be the end, but at 96 he's had a good innings as they say.

He moved in with my sister 18 months ago for a short period, but as time progressed it was clear he wouldn't be going home as he was incapable of looking after himself. Last August he was still lucid & we agreed (our father, my sister & I) that it was best to sell his bungalow which I did on his behalf & accepted an offer in late November. My sister has POA & is selling the property on his behalf, it's slow going under the current circumstances, however my sister & I have a concern that if it takes much longer our father may not still be around.

It seems heartless to ask this question but we would like to understand the situation, if our father passes away before completion what would happen? There is a will where the instruction is for the bungalow be sold & the proceeds to be split between my sister & I. but would we have to wait for Probate & start the whole process again?

[Mrchan66]

Hi Phaeton, the short answer is yes you would more than likely be required to get the grant of probate before the purchaser/purchaser's lender agrees to complete the sale. Assuming the purchasers are happy to continue with the purchase (knowing of the likely delay) then you shouldn't have to start the whole process again.

Depending on where you were in the process at the time of your father passing would also make a difference:

Before exchange of contracts neither party is contractually bound to sell/purchase the property. As mentioned above if both parties are happy everything can continue however the grant of probate will still be required.

If your father was to pass away between exchange of contracts and completion is when issues can arise. Both parties are bound to sell/purchase the property. It is unlikely that a grant of probate will be obtained before any anticipated completion date and the estate could be in breach of contract if a notice to complete is served. I'm not sure what anyone else thinks but you might want to discuss the option of a simultaneous completion with your conveyancer (where you exchange contracts and complete at the same time) as this should avoid this risk.

If your father was to pass away after completion but prior to registration at land registry then the documents have been executed during his lifetime, the POA would have still been valid and this shouldn't cause any issues.

I hope that you don't need to worry about this and completion happens with no issues.

I'm providing this as general information and you should not rely on this as correct or as legal advice. I would suggest you speak to a professional conveyancer who can, looking at all the information, provide proper legal advice if you are concerned about how this could impact the sale.

I hope everything makes sense and you find this somewhat helpful.

[LisaPullman]

I would actually suggest you stay positive, yet find a reliable attorney/lawyer or someone else performing conveyancing services in order to have a consultation regarding your question. The most logical and reasonable answer is that yeah, you should probably start from scratch.
I've never been in such a situation, hope that I won't be either, yet I've already had some issues with purchasing a house. They were not from my side, but anyway, it was me who found waymanandlong.co.uk to solve the issue with the paperwork. Selling and purchasing a house is a decision needing the maximum of responsibility from both sides, especially when it comes to paperwork.

[Phaeton]

Just for completion, the contracts were eventually exchanged on the 23rd April & the better news is our fathers health has improved,