I have had a few inquiries recently from conveyancing colleagues that has cause me to question the position.
When a property is owned as tenants in common and one of the owners dies, it has always been the case that you seek and receive a probate from the seller and the executor/administrator is a party to the sales contract and transfer deed.
However, the land registry no longer require a probate in this case and are happy to go with a death certificate together with ST5 and RX for to remove the restriction.
What my conveyancing colleagues are finding in that because of the Land Registry’s new position, the sellers solicitors are refusing to provide a probate to prove authority their clients have authority to sell. Instead they are arranging for the surviving owner to appoint a trustee so that receipt of sale proceeds deals with overreaching and any other land law issues.
I’m struggling to understand that this is OK from a probate point of view as in my mind that doesn’t give the buyer certainty that they property is being sold and sale proceeds distributed in accordance with probate rules.
Am I over thinking this or should we still be seeking a probate? If anyone has any legislation or case law to confirm the position that would be really helpful too.