When Sarah’s father passed away last year, she assumed she could start making decisions about his house straight away.
The will clearly left everything to her, so surely that meant she owned it now? But when she contacted the bank about the mortgage, they told her she had no authority to discuss it. The estate agent said she couldn’t put it on the market. Even the insurance company wouldn’t speak to her about renewing the policy.
This confusion affects thousands of families across the UK every year.
You might think inheritance happens the moment someone dies, but property ownership during probate works very differently. Bills keep arriving, maintenance needs doing, and family members may have conflicting ideas about who can live there or make decisions about the property.
The good news is that property ownership during probate follows specific legal rules. Once you understand these rules, the confusion disappears. You’ll know exactly who has what rights, when ownership actually transfers, and how to handle the practical challenges that come up.
The Legal Reality of Property Ownership During Probate
Here’s what many people don’t realise: when someone dies, their property doesn’t automatically belong to the people named in the will.
The legal title stays with the deceased person until the Grant of Probate is issued by the court. This creates a temporary legal limbo where the estate itself becomes the owner.
Think of it like this – the property is in a legal holding pattern.
The deceased person can’t own it anymore, but the beneficiaries don’t own it yet either. During this period, the estate holds the legal title, while beneficiaries have what lawyers call an “equitable interest” – essentially a future claim to ownership that isn’t yet legally enforceable.
This explains why banks, estate agents, and other organisations won’t deal with beneficiaries directly.
They need to see official court documentation proving someone has the legal authority to act. In England and Wales, this process takes around 9 to 12 months on average, though complex estates can take much longer.
What Executors Can and Can’t Do
Executors have management responsibility for the property during this period, but they don’t own it either. They’re more like legal caretakers, with specific powers and duties to protect the estate’s value until everything can be properly distributed. They won’t be able to sell the property, or apply for a mortgage or secured loan.
Read more: The Role of an Executor or Administrator
Joint Ownership Changes Everything
If the property was owned jointly, the rules work completely differently.
‘Joint tenancy’ means the surviving owner automatically inherits the deceased person’s share without any need for probate. This happens immediately upon death, which is why many married couples choose this arrangement.
‘Tenants in common’ is different though.
Each person owns a specific share that doesn’t automatically pass to the other owner when they die. The deceased person’s share must go through probate before it can be transferred to whoever inherits it under the will or intestacy rules.
Who Controls the Property Before Probate is Granted?
Executors step into a unique position during probate.
They have the authority to make decisions about the property, but they can’t do whatever they want with it. Their job is to protect the estate’s value while the legal process runs its course.
An executor can decide who lives in the property temporarily, arrange essential repairs, and make sure insurance stays in place.
They can’t sell the property though – not without the Grant of Probate or a special court order. This restriction exists to prevent hasty decisions that might not reflect the deceased person’s wishes or the beneficiaries’ best interests.
When Executors Disagree
When multiple executors are involved, they need to agree on major decisions.
If they can’t reach agreement, the matter might end up in court, which adds time and expense to an already lengthy process. Family dynamics can make these situations particularly challenging, especially when emotions are running high.
Personal Liability Concerns
The executor’s authority comes with personal responsibility too.
If they fail to maintain adequate insurance or let the property fall into disrepair, they could be personally liable for any losses. This responsibility continues throughout the entire probate period, which puts considerable pressure on people who are often dealing with grief while learning complex legal responsibilities for the first time.
The Financial Responsibilities Nobody Expects
Property costs don’t stop during probate, but the estate bank accounts remain frozen until the Grant of Probate is issued. This creates an immediate cash flow problem that catches many families off guard.
Ongoing Property Expenses
Monthly mortgage payments continue, buildings insurance must be maintained, and utility bills keep arriving.
Empty properties can need special insurance, which costs more than standard cover. Council tax liability continues, though you might get a discount for unoccupied properties. Security and basic maintenance become ongoing expenses, especially if the probate process drags on for months.
The Cash Flow Challenge
The executor is responsible for making sure these costs are met, but they’re not expected to pay from their own pocket.
The problem is accessing estate funds to cover the expenses.
Some banks will release small amounts for essential costs, but their policies vary enormously. Others won’t release anything without probate, regardless of how urgent the expenses might be.
This leaves executors in a difficult position. They have a legal duty to protect estate assets, but they may struggle to access the funds needed to meet ongoing property expenses. The longer probate takes, the more these costs mount up, eating into the estate’s value.
When Beneficiaries Actually Become Legal Owners
Legal ownership only transfers when the Grant of Probate is issued and the property is formally transferred to beneficiaries.
Even after probate is granted, there’s additional paperwork to complete before beneficiaries can call themselves the legal owners.
The Land Registry needs updating to show the new ownership details.
If multiple people inherit the property, decisions need making about how they’ll own it together – as joint tenants or tenants in common. This process can take several additional weeks after probate is granted.
Once these formalities are complete, beneficiaries finally have full legal ownership. They can sell the property, live in it, rent it out, or do whatever they choose with their inheritance. But until that point, their ownership exists only on paper.
Related: How Long After Probate Is Granted Can You Sell a House?
Probate Property Loans: Bridging the Financial Gap
Specialist lenders offer probate loans designed specifically for situations where estate assets are frozen but property expenses continue mounting up.
These loans work differently from standard borrowing because they’re secured against your expected inheritance rather than your personal income or assets.
How Probate Loans Work
You can borrow a percentage of your expected inheritance – usually between 25% and 50% of the property’s value.
The loan doesn’t require monthly payments because the entire amount, including accumulated interest, gets repaid directly from your inheritance when the estate settles. This structure removes the pressure of finding money from other sources while you’re waiting for probate to complete.
Who Might Need a Probate Loan
Executors often use executor loans to cover inheritance tax payments, which must be paid within six months of death, often before probate is granted. They’re also useful for covering ongoing property expenses like mortgage payments, insurance, and essential maintenance.
Beneficiaries might use inheritance loans if they need access to funds before their inheritance comes through.
Read more: Can I Use a Probate Loan to Pay Inheritance Tax?
The Application Process
The loan application process focuses on verifying your legal entitlement to inheritance rather than assessing your creditworthiness. Most lenders can release funds within days of approval, which helps when you’re facing urgent deadlines or mounting expenses.
Alternative Solutions for Property Management During Probate
Probate loans aren’t the only option for managing property costs during estate administration. Several alternatives might work depending on your circumstances.
Family members might agree to advance money against their future inheritance, effectively lending money to the estate that gets repaid when everything settles. Some solicitors offer small advances to cover immediate expenses, though these are usually limited to a few thousand pounds.
If part of the estate can be released early – perhaps from insurance policies or smaller bank accounts – this might provide enough funds to cover property expenses. Rental income from the property could potentially cover ongoing costs, though executors need to be careful about their authority to create new tenancies before probate is granted.
Each situation requires careful consideration of the legal implications and available options.
Taking Control of Your Situation
Understanding property ownership during probate removes much of the uncertainty that makes this period so stressful.
Whether you’re an executor managing estate responsibilities or a beneficiary waiting for your inheritance, knowing the legal framework helps you make better decisions.
Start by identifying your specific role and the rights that come with it. If you’re facing immediate financial pressures related to property expenses, explore your options rather than struggling alone or using your own funds unnecessarily.
Consider speaking with a probate specialist or experienced mortgage broker who can explain the solutions available for your particular circumstances.
Property ownership during probate follows clear rules – once you understand them, you can plan ahead and handle whatever challenges arise with confidence.
Frequently Asked Questions
Yes, you can usually live in the property during probate if the executors agree and it doesn’t prevent the estate from being administered properly. The executors have the authority to decide who can occupy the property temporarily, and they’ll consider factors like property security, insurance requirements, and the needs of all beneficiaries.
The estate is responsible for mortgage payments, not you personally. However, if estate funds are frozen, someone needs to make the payments to prevent repossession. Many executors use probate loans to cover these costs rather than paying from their own money, as the loan is repaid from the inheritance when probate completes.
Generally no, executors cannot sell property without the Grant of Probate. There are very limited exceptions where a court might grant special permission, but these are rare and usually only for urgent situations where the property is rapidly losing value.
Read more: https://www.probateloans.co.uk/can-you-sell-a-house-before-getting-probate/
Joint tenants means the surviving owner automatically inherits the deceased’s share. Tenants in common means each person owns a specific share that must go through probate to transfer to their beneficiaries. The property deeds will show which type of ownership applies.
You cannot get a mortgage secured against property you don’t yet legally own. However, some lenders offer probate loans secured against your expected inheritance, which can provide funds while you wait for legal ownership to transfer.
The estate pays inheritance tax, not individual beneficiaries. However, if the estate lacks liquid funds, someone needs to pay the tax upfront to obtain probate. Many people use IHT probate loans for this purpose, as the tax must be paid within six months of death.
You don’t pay capital gains tax on the inheritance itself, but you may owe tax if you later sell the property for more than its probate value. The property’s value at death becomes your “base cost” for capital gains calculations.
Standard probate takes 9-12 months on average, though complex estates can take 18 months or longer. The property cannot be sold or formally transferred until probate is complete, which is why many people need financial solutions to bridge this gap.
Further Reading
For comprehensive guidance on the probate application process, readers can visit the official government probate service at gov.uk/applying-for-probate which provides step-by-step instructions and current fees.
Those dealing with property transfers should consult the Land Registry’s guidance at gov.uk/registering-land-or-property-with-land-registry for detailed information about updating property ownership records after probate.
Understanding inheritance tax obligations is essential, and HMRC’s comprehensive guide at gov.uk/inheritance-tax covers rates, allowances, and payment requirements.
For broader advice on dealing with someone’s financial affairs after death, Citizens Advice provides practical guidance at citizensadvice.org.uk/family/death-and-wills/dealing-with-the-financial-affairs-of-someone-who-has-died covering everything from notifying organisations to managing debts.
Finally, for detailed information about executor duties and responsibilities, the Society of Trust and Estate Practitioners offers valuable resources at step.org/public-information which can help those appointed as executors understand their legal obligations and potential liabilities.
