When people talk about a house being “in probate”, they are referring to the legal process that allows someone to deal with the property after the owner has died. That process often involves obtaining a grant of probate, or a grant of administration if there is no will, so that the deceased person’s affairs can be properly administered.
In many cases, the house does not pass immediately to the person who is due to inherit it. Instead, the property must first be dealt with as part of the estate, which may involve valuing it, paying debts and taxes, and deciding whether it should be sold or transferred to a beneficiary.
Does the house form part of the probate estate?
The first question is whether the house actually forms part of the probate estate at all. That matters because not every property is dealt with in the same way after a death.
If the house was owned by the deceased in their sole name, it will usually form part of the estate, and a grant of representation will normally be needed before it can be sold or transferred. That means the executor, or the administrator where there is no will, must deal with the property as part of the probate process.
Jointly owned property can be different. If the house was owned as a joint tenancy, the deceased’s interest will usually pass automatically to the surviving joint owner by survivorship. In that situation, the property does not pass under the will in the usual way.
If, however, the property was owned as tenants in common, the deceased owned a distinct share in the property. That share forms part of the estate and passes under the will, or under the rules of intestacy if there is no valid will. This distinction is often important because it affects whether probate is needed, who is entitled to the property, and what steps must be taken next.
Who controls the house during probate?
This depends on who has legal authority to deal with the estate. In most cases, that will be the executor named in the will, or, if there is no will, the administrator appointed to deal with the estate. Together, they are referred to as the personal representative.
Although a beneficiary may be due to inherit the house, they do not usually become the legal owner immediately on the date of death. Instead, the property vests in the personal representative for the purpose of administering the estate. That means the personal representative is responsible for dealing with the house while probate is ongoing.
Their role may include securing the property, arranging a valuation, making sure insurance is in place, and dealing with any outgoings that must be paid. The personal representative must also consider the wider estate, including any debts, taxes, or claims that could affect what ultimately happens to the house.
Only once the estate has been properly administered can the house usually be sold, transferred to a beneficiary, or otherwise dealt with in accordance with the will or the rules of intestacy. For that reason, the personal representative plays a central role in deciding what happens to the property during the probate process.
What can happen to the house during probate?
Once probate is underway, there are several possible outcomes for the house. It may be:
- sold as part of the estate administration
- transferred to the beneficiary who is entitled to it
- appropriated to one beneficiary as part of their share in the estate
When the house may be sold
In some estates, the personal representative will need to sell the property. This can happen where the estate needs funds to pay debts, discharge a mortgage, meet tax liabilities, or cover the costs of administration. A sale may also be necessary where there are several beneficiaries, and the most practical way to divide the estate fairly is to convert the property into cash.
Even where a will leaves the house to a particular person, a sale may still be required if the estate does not have enough other assets to meet its liabilities. For that reason, the house is not always preserved simply because the deceased intended one person to receive it.
When the house may be transferred to a beneficiary
If the estate is solvent, and there is no need to sell the property, the house may be transferred to the beneficiary who is entitled to it under the will, or under the rules of intestacy. This can happen once the personal representative has dealt with the main steps in the administration, including identifying assets, paying debts, and addressing any tax issues.
When the house may be appropriated to one beneficiary
Sometimes, one beneficiary may wish to keep the house, while others receive different assets, or cash, from the estate. In that situation, the property may be appropriated to that beneficiary as part of their entitlement.
When the outcome will depend on the estate as a whole
It is important to remember that the house cannot be looked at in isolation. The personal representative must consider the wider estate, including liabilities, tax, the terms of the will, and the rights of any spouse, civil partner, child, or other person who may have a claim.
For that reason, what happens to the house during probate will often be shaped as much by the overall administration of the estate as by the property itself.
Can someone keep living in the house during probate?
Yes, sometimes they can, but it will depend on the circumstances of the estate. The key point is that living in the house during probate does not necessarily mean that the person has a legal right to inherit it.
Keep in mind the following:
- the house remains under the control of the personal representative during probate
- a surviving spouse or civil partner may have rights in relation to the family home
- a family member may continue living in the property for practical reasons while the estate is being administered
- continued occupation can become more complicated if the house needs to be sold, or if there is disagreement between beneficiaries
- issues such as insurance, bills, maintenance, and the future of the property should be considered early
What rights can affect who gets the house?
The terms of the will are important, but they are not always the end of the matter. Certain statutory rights and claims can affect who ultimately receives a house from an estate, or whether the property must be sold, transferred, or otherwise dealt with in a different way.
Rights of a surviving spouse or civil partner
A surviving spouse has a legal right to part of the estate, even if the will says otherwise. Where there are no children, that legal right is one-half of the estate. Where there are children, it is one-third. A surviving civil partner has equivalent rights.
These legal rights can directly affect what happens to a house. If the will leaves the property to someone else, the estate may still need to be administered in a way that respects the spouse’s or civil partner’s entitlement. In some cases, that can affect whether the house is transferred as planned or whether other arrangements need to be made.
Children may bring a claim in some cases
Children do not have an automatic fixed share of the estate in the same way, but they may be able to bring a claim under section 117 of the Succession Act 1965. This allows a child to ask the court to consider whether the deceased failed in their moral duty to make proper provision for them.
That kind of claim can affect the final distribution of the estate, including what happens to the house. It can also delay a transfer or sale while the position is being resolved. An application under section 117 must be made within 6 months from the first taking out of representation.
Qualified cohabitants may also have rights
A cohabiting partner does not have the same automatic succession rights as a spouse or civil partner. However, a qualified cohabitant may apply to the court for provision out of the deceased’s estate in certain circumstances.
That means a house which might appear to pass straightforwardly under a will can still be affected by a cohabitant’s claim. The time limit is important here as well, because the application must be brought not more than 6 months after representation is first granted.
Concerned about what might happen to a house during probate?
Dealing with a house during probate can be more complex than many families expect. Whether the property is sold, transferred, or retained will depend on how it was owned, the terms of the will, the rights of any spouse, civil partner, or child, and the liabilities of the estate. Taking advice at an early stage can help to avoid delays, disputes, and costly mistakes.
If you need guidance on any aspect of probate, estate administration, or inheritance disputes, the wills & probate team at McCarthy + Co Solicitors LLP can help. We advise executors, administrators, beneficiaries, and families across a wide range of legal matters arising after a death, and we are here to provide clear, practical support when you need it most. Arrange a time to speak with a solicitor by completing our quick and confidential online form.
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