The Key Distinction: Marketing vs Exchange

The critical legal boundary in a probate sale is not marketing — it is exchange of contracts. Contracts cannot be exchanged until the grant of probate (or letters of administration) has been received. However, there is no legal requirement to wait for probate before marketing the property. An executor can instruct an estate agent, have the property valued, list it for sale, conduct viewings, and accept offers — all before probate is granted. The sale simply cannot proceed to exchange until the grant is in hand.

Why Marketing Early Can Make Sense

Starting the marketing process before probate is granted can significantly reduce the overall time from death to completion. Probate can take several months, and if the property is not marketed until after the grant is received, the total timeline extends accordingly. By marketing early, an executor can have a buyer identified and ready to proceed by the time probate is granted — meaning exchange can happen quickly once the legal authority is in place. This is particularly valuable where beneficiaries are waiting for funds from the estate.

What Must Be Disclosed to Buyers

When marketing a property before probate is granted, buyers must be clearly informed that the sale is subject to probate. This means they should understand that exchange cannot take place until the grant has been received, and that the timeline for this is uncertain. Most estate agents will include this information in the property details and will communicate it clearly to interested buyers. Buyers who are not informed of the probate status may feel misled if the sale is delayed, which can damage the relationship and increase the risk of the buyer withdrawing.

Buyer Expectations and Retention

Some buyers are comfortable waiting for probate; others are not. Buyers who are in a chain, who have a fixed deadline to move, or who are renting and paying significant costs while waiting may find a probate delay difficult to manage. It is important to be realistic with buyers about the likely timeline and to keep them updated on progress. A buyer who feels informed and respected is much more likely to wait than one who feels they are being kept in the dark.

Instructing an Estate Agent Before Probate

Estate agents can be instructed before probate is granted. The agent will need to know that the sale is a probate sale and will need to see evidence of the executor's authority — typically a copy of the will and the death certificate. They will not be able to exchange contracts on your behalf until the grant of probate is received, but they can manage all aspects of the marketing and offer process in the meantime. Choose an agent with experience of probate sales, as they will be better equipped to manage buyer expectations.

Instructing a Solicitor Before Probate

It is also sensible to instruct a conveyancing solicitor before probate is granted. The solicitor can begin preparing the draft contract, reviewing the title, and gathering the property information forms. This means that when probate is granted, the legal pack is already substantially complete and exchange can happen quickly. Some solicitors handle both the probate application and the conveyancing, which can simplify communication and reduce delays.

When You Must Wait

While marketing can begin before probate, there are some steps that cannot be taken until the grant is received. These include: exchanging contracts; signing a transfer deed; and receiving the proceeds of sale. If a buyer is pressing for a quick exchange and probate has not yet been granted, the executor must explain that this is not legally possible. Attempting to exchange without the grant in place would be a serious legal error.

Practical Tips for Managing the Process

To manage the gap between marketing and exchange as effectively as possible:

• Apply for probate as early as possible — ideally before or at the same time as instructing the estate agent
• Keep the estate agent and solicitor informed of the probate application status
• Provide buyers with a realistic estimate of when probate is expected
• Update buyers promptly if there are any delays to the probate timeline
• Prepare all property information and documentation in advance so exchange can happen quickly once probate is granted
• Consider whether to accept offers from buyers who have a fixed deadline that may not be achievable