If you have been appointed as the executor to someone who has died owning property in Scotland, you may be wondering what you can do with the property. As executor, can you sell the house? And would you be entitled to buy it from the estate if you wanted to?
What am I required to do with the property as executor?
Executors should take a number of practical steps when dealing with a property as part of an estate. Firstly, you must make sure that it is properly insured. This mitigates the risk of the property being damaged or destroyed during the period of the administration of the estate. Contact the insurers as soon as possible to inform them of the death and that you are acting as executor. They will need to know if the property is unoccupied and may apply conditions to the policy as a result. These conditions may include the property being checked on a regular basis and the heating kept on at a minimum temperature during the winter months (or drained down). You should also ensure that the house is secure and maintained in a reasonable condition.
As executor, can I sell the property?
When deciding whether you can sell the deceased’s house, the first thing you need to consider is whether anyone is entitled to inherit the house.
If there is a will
Check the terms of the will to ascertain if the house has been left as a specific legacy to a beneficiary. In this situation, you will not be entitled to sell the house. Instead the house must be transferred to the beneficiary when you are in a position to do so.
If there is no specific legacy of the house, you should be able to sell the property. Unless the will specifically states they are not entitled to, executors in Scotland have the power to “realise” or sell assets in the estate.
If there is no will
In situations where there is no will, the estate will be intestate. A spouse or civil partner who was living in the property at the date of death, may be entitled to inherit the house, up to a certain value. In that case, you will not be able to sell the property unless the spouse or civil partner wishes it to be sold.
Before selling the property
Before the executry property can be sold, you must obtain a grant of Confirmation (the Scottish equivalent of probate) on the estate. This is a legal document issued by the Sheriff Court. It confirms who the executors of the estate are. It also gives the executors the authority to sell or transfer the assets in the estate. To obtain a grant of Confirmation, you must apply to the Sheriff Court. The application lists an inventory of the deceased’s assets, including values. When the grant of Confirmation is issued by the Sheriff Court, they can also provide certificates of Confirmation for each asset. The certificate of Confirmation will be used to show that you can sell the house as executor.
You may also wish to take advice from an estate agent as to whether any work should be carried out to the property before sale. This might include removing furniture, arranging a deep clean, tidying up the garden and giving it a lick of paint. Such work is not essential, but it may assist in getting the best price for the property. Major upgrading of the property is not generally advisable, as you may not get back the money you put in.
Once the property is ready to market and you have the grant of Confirmation, you can instruct an estate agent to market the property for sale.
Can I sell the property in a private sale?
You can sell the property “off market” and agree a private sale for it. This will save on estate agency fees and some of the other sale costs. However, as an executor you have a duty to maximise the estate for the benefit of the beneficiaries. Therefore, you should take advice as to what price to accept for a private sale. Without putting the property on to the open market, it is difficult to know what other buyers would have been willing to pay for the property. You should therefore try to negotiate the best price you can for private sale; ideally above the surveyor’s valuation.
As executor, can I buy the executry property for myself?
An executor is generally not allowed to transact with the executry estate unless the will specifically allows that. This is because your role as executor and purchaser would conflict. Therefore, if there are other beneficiaries who are entitled to receive a share of the estate, you would require their agreement to you purchasing the property from the estate. The other beneficiaries may raise a court action against you, if you proceed with a purchase without seeking their agreement.
Contact us for advice
We can advise you on your duties as executor or on issues relating to property forming part of the estate. Please contact one of our personal law solicitors and we will be happy to help.