When dealing with a property in which the registered proprietor is deceased, terms like “grant of probate,” “executors,” “letters of administration” and “administrators” frequently arise but there is often a lot of confusion as to which terms should be used and when. This article will look at the difference between these terms and which document applies to prove the chain of representation when registering the property at HM Land Registry as well as looking at the potential problems when obtaining these documents.

Grant of Probate or Letters of Administration?

If a registered proprietor dies leaving a surviving joint owner and the property is held as joint tenants, then the surviving registered proprietor can sell the property showing only the death certificate of the deceased registered proprietor.

However, if a registered proprietor dies and they are the only person on the title or hold the property on trust as tenants in common, a grant from the probate registry will be needed in order to sell the property.

If the registered proprietor died leaving a will, they will have appointed executors to administer their estate in the will. The executors will then apply for a grant of probate. The executors have the power to sell a property on behalf of a registered proprietor, they will sign the necessary documents, and the grant of probate provides the legal authority for the executors to sell or transfer the property.

On the other hand, ‘letters of administration’, also known as a ‘grant of letters of administration’, are issued when a person dies without leaving a valid will or where there is a will, but no other executor is appointed. The letter of administration grants legal authority to the ‘administrator’ to manage the estate of the deceased.

Therefore, if the registered proprietor died leaving a will a grant of probate will be issued to the nominated executors to distribute the estate according to the wishes of the deceased as per the terms of the will. If the registered proprietor died without a will, letters of administration will be issued to administrators to distribute the deceased estate according to the rules of intestacy.

A transaction cannot complete until the grant has been issued as this grant is needed to prove a chain or representation from the deceased registered proprietor to the acting executor or administrator. This grant needs to be sent to HM Land Registry to register the change of ownership and without this the property cannot be registered in the name of the transferee, thus requisitions will be raised.

What happens when an executor or administrator ceases to act or dies whilst dealing with the deceased estate?

Once a grant of probate or letters of administration have been issued a conveyancing transaction can normally proceed smoothly. But what happens if an executor or administrator dies or loses capacity before the transaction completes?

If the deceased’s appointed executor or administrator has a valid will naming a new executor, the new executor can continue the estate administration as a chain of representation exists. Both the grant of probate or grant of administration for the first estate and the grant of probate for the second estate will need to be sent to HM Land Registry with the application for registration to show the chain of representation.

However, if the deceased executor or administrator dies without a valid will the chain of representation is broken, and a new administrator needs to be appointed through ‘letters de bonis non’ to finalise the estate.

Letters de bonis non, also known as ‘letters of administration de bonis non administratis’, are granted when an estate has not been fully administered due to the incapacity, resignation, death, or removal of the original executor or administrator, who has no will. The letters de bonis non gives the power to a new administrator to administer the first estate and now the second estate (that of the original executor/administrator who has since passed).

Post-completion considerations

Proving the chain of representation
Ensure the correct documentation is sent to HM Land Registry to prove the chain of representation. Failure to do this will result in delays and requisitions.

• A death certificate is required where the deceased was a joint tenant.
• A grant of probate (where there is a will) or letters of administration (intestate) is required where the deceased held as tenants in common or is the sole survivor.
• Letters de bonis non is required if the original executor/administrator passed and left no valid will (i.e. the chain of administration is broken), this will need to be accompanied by the grant of probate or letters of administration for the original executor/administrator, who has deceased.

Limited title guarantee
Both executor or administrator have the same powers to sell a property on behalf of the deceased registered proprietor and will sign all the legal documents. The contract will however stipulate that they sell with limited title guarantee. This implies that the executor or administrator has the legal right to sell the property, as proven by the grant of probate or letters of administration, but it does not guarantee they know about any rights or burdens that might affect the property, or the actions of previous owners.
From a post-completion perspective you must ensure that panel 9 of a TR1 or panel 10 of a TP1 clearly reflects this in the title guarantee.

Apply for the registration as soon as possible after completion
It is likely if a grant of probate /letters of administration was needed the transaction has already taken months to complete. The property could have stood empty during this time and been more susceptible to fraud. The sooner the application is applied for the more up to date the contract details are for the executor/administrator if they need to be contacted in regard to any requisition raised.

Conclusion

Understanding the documents required to prove the chain or representation for a deceased proprietor is essential for transferring ownership of a property. The process of obtaining these documents is lengthy and can cause many delays in the conveyancing process. However, making sure the correct documentation is supplied with your application to HM Land Registry will ensure that your post-completion duties are complied with in a timely manner.