If you are dealing with the estate of someone who has died, and that person owned a house (or a flat, or piece of land) in Scotland, you may be wondering if you can sell a house before confirmation in Scotland.
The answer depends on how the title deeds to the deceased person’s property looks. So you should obtain the title deeds to the property as soon as possible.
If you don’t have these to hand, you may be able to order copies via Registers of Scotland’s website.
What is Confirmation?
Confirmation is a legal document that authorises the person dealing with the estate (the “executor”) to gather up the deceased person’s assets and belongings, so that these can be distributed in terms of the deceased person’s Will or, if the person died without having made a Will, in terms of the default Scottish laws of distribution (known as the “laws of intestacy”).
If the deceased person died without making a Will, you will need a solicitor to assist you in obtaining Confirmation. Even if there is a Will, a solicitor familiar with the laws of succession and inheritance in Scotland will be essential.
So do I need Confirmation before I can put the property on the market?
Technically no – you can market the property at any point, however you will not be able to formally sell the property (known in Scotland as “concluding missives”) without Confirmation having been granted by the Sheriff Court in Scotland.
Most estate agents will ask you if you have obtained Confirmation before they list the property on Rightmove, etc., however it is our recommendation that you raise this matter with your estate agent as early in the process as possible.
Does every property in Scotland need Confirmation before it can be sold?
No. If the property was owned by the deceased and another (living) person, and the title deeds contain a survivorship destination, then the legal ownership of the deceased’s interest in the property will have passed automatically to that surviving co-owner – without any legal work needing to be done.
If, however, the deceased owned the property in their sole name (or if they owned it with a someone who died before them), then Confirmation to potentially both estates will be required before the house can be sold.
What if I have already marketed the property without Confirmation?
In this case, you will need to contact a solicitor as soon as possible to start the Confirmation process in earnest. You would be best to also let your estate agent know that you will be seeking to obtain Confirmation as soon as possible.
Confirmation can take many months to materialise, so you will need to let everyone know the current position to manage expectations. Your estate agent and your conveyancing solicitor will likely inform potential purchasers of the delay in finalising matters until Confirmation has been obtained.
What to consider when selling the deceased’s house
What follows are some important considerations to keep in mind if you are to sell the deceased’s property or land in Scotland.
Insurance
You must make sure that the policy of insurance over the property is up-to-date and registered in the name of the Executor(s) of the estate. This lessens the risk of the property being damaged or destroyed while the estate is being dealt with. It is best to contact the insurance provider as soon as possible after the death to inform them of the change in circumstances, and to note that you are acting as executor. You should also ensure that the house is rendered secure, wind and watertight, and maintained in a reasonable condition.
Repairs
You may wish to seek advice from an estate agent as to whether any work should be carried out to the property before sale. This might include redecoration, clearance, arranging a deep clean, tidying the garden. Such work is not essential, but may increase the overall value of the property.
An Executor has a duty to maximise the estate for the benefit of the beneficiaries, so it is certainly worth improving the property if possible.
Valuation
An Executor does not have to provide their personal valuation of the property. Rather, they can engage an expert such as a surveyor or estate agent who will be able to give accurate estimate of value. In most cases a Home Report will be prepared, which will contain a value for the property.
Getting the right help at the right time
When it comes time to settling the deceased person’s estate – including selling their home – being aware of the necessary steps will help to reduce the stress of the process.
If you need to talk to an expert about applying for confirmation, contact us today on 0141 628 5544, email info@weirlaw.co.uk or Make An Online Enquiry and we’d be delighted to talk with you. We’re also available 24 hours a day on our webchat facility.
