What Does "Selling" Actually Mean?

In legal terms, a property is not 'sold' until contracts are exchanged. Before exchange, either party can withdraw from the transaction without legal consequence. This distinction is important in the context of probate, because the restriction on selling before probate is granted applies specifically to exchange of contracts — not to the earlier stages of the process.

What You Can Do Before Probate Is Granted

Before probate is granted, an executor can:

• Instruct an estate agent to value and market the property
• Conduct viewings and show the property to prospective buyers
• Accept an offer from a buyer, subject to probate
• Instruct a solicitor to begin preparing the legal pack
• Gather property information and complete the TA6 and TA10 forms
• Apply for a copy of the title register from HM Land Registry

What You Cannot Do Before Probate Is Granted

Before probate is granted, an executor cannot:

• Exchange contracts on the sale
• Sign a transfer deed (TR1)
• Receive the proceeds of sale
• Complete the sale

Why Exchange Requires the Grant

Exchange of contracts is the point at which the sale becomes legally binding. For an executor to enter into a binding contract to sell a property, they must have the legal authority to do so — and that authority is granted by the probate court. Without the grant of probate or letters of administration, the executor has no legal standing to bind the estate. Any purported exchange before the grant is received would be legally ineffective and could expose the executor to personal liability.

Accepting Offers Before Probate

Accepting an offer before probate is granted is entirely normal and is standard practice in probate sales. The offer is accepted 'subject to probate', meaning both parties understand that exchange cannot take place until the grant has been received. The buyer proceeds with their own preparations — arranging a mortgage, instructing a solicitor, conducting searches — while the executor progresses the probate application. When the grant arrives, exchange can happen quickly if both sides are ready.

The Risk of Buyer Withdrawal

The main risk of accepting an offer before probate is that the buyer may withdraw before exchange. Because neither party is legally bound until exchange, a buyer who finds another property, has a change in circumstances, or simply loses patience waiting for probate can walk away without penalty. This risk can be mitigated by choosing a motivated buyer, keeping them informed of probate progress, and ensuring the legal pack is as complete as possible so that exchange can happen quickly once the grant arrives.

Joint Ownership: A Different Position

If the property was owned as joint tenants — rather than tenants in common — the position is different. On the death of one joint tenant, the property passes automatically to the surviving joint tenant by right of survivorship. The surviving owner already has full legal title and does not need probate to sell the property. They can market, accept offers, exchange, and complete in the normal way. Probate may still be required for other parts of the estate, but not for the property itself.

Tenants in Common

Where the property was owned as tenants in common, each owner holds a defined share of the property. On death, that share forms part of the deceased's estate and must pass through probate. The surviving co-owner cannot sell the property alone — they need the executor or administrator of the deceased's estate to join in the sale. This requires probate to be obtained before exchange can take place.

Practical Implications for Timing

Understanding what is and is not possible before probate allows executors to plan the sale timeline more effectively. Rather than waiting for probate before instructing an agent, executors who begin marketing early can have a buyer ready and waiting when the grant arrives — potentially saving several months on the overall timeline. The key is to be transparent with buyers about the probate status and to keep all parties informed as the process progresses.