What Happens to the Family Home When Someone Dies?

Losing a family member is difficult enough without the added worry of dealing with their property[JK1.1]. One of the most common questions families face during estate administration is: what happens to the family home when someone dies?

The answer depends on a number of factors, including how the property was owned, whether a Will is in place, and what the beneficiaries want to do next. Much of the process can be straightforward, but there are situations where delays and complications can arise if the correct steps are not taken.

Does the Property Automatically Pass to a Surviving Spouse?

In many cases, the family home will pass to a surviving spouse or partner, but this is not always automatic.

Where a property is owned jointly, the outcome will depend on the type of ownership. If the property is held as joint tenants, the deceased’s share will usually pass automatically to the surviving owner through the right of survivorship. The death certificate is filed with the Land Registry who then simply remove the deceased owner’s name from the title.

However, where the property is owned as tenants in common, the deceased’s share passes according to the terms of their Will, or the intestacy rules if there is no Will. In these circumstances, the surviving owner may continue living in the property even where other beneficiaries inherit a share. The surviving owner then holds the property on trust for themselves and the beneficiaries of the deceased owner’s will.

Importantly, inheriting a share of the property does not necessarily mean the home has to be sold immediately.

What Happens if the Deceased was the Sole Owner?

If the deceased owned the property alone, or was the surviving owner following a previous death, the executors will need to obtain a Grant of Probate before the property can be sold or transferred.

During this period, the property can remain in the deceased’s name. While families are often keen to put the house on the market quickly, it is generally sensible to obtain probate first, as delays at the Probate Registry can affect the progress of a sale.

If the beneficiaries would like to keep the property, perhaps as an investment or rental property, probate will still usually be needed before ownership can be transferred into their names.

Can one Beneficiary Keep the Property?

Yes. It is quite common for one beneficiary to wish to retain a property, particularly where it has sentimental value and they plan to live it in.

In these circumstances, beneficiaries may agree for one person to buy out the other’s share. The parties should agree a fair valuation and obtain independent legal advice before proceeding. Depending on the circumstances, Stamp Duty Land Tax (SDLT) may also be payable by the beneficiary acquiring the additional share.

There may also be opportunities to use a Deed of Variation, which can alter how assets are distributed from an estate following a death.

What if there is no Will?

Where someone dies without a valid Will, specific rules determine who is entitled to deal with the estate and who inherits.
Instead of executors applying for probate, administrators apply for Letters of Administration. The overall process for selling or transferring the property is broadly similar, but estates without a Will can take longer to administer and there can be greater uncertainty over who has authority to act.

Trusts can add Complexity

Some properties may be subject to trusts, either because the deceased occupied the property as a beneficiary of a trust during their lifetime or because they left the property in trust through their Will.

A trust can affect who has authority to make decisions about the property and whether it can be sold or transferred immediately. Where a property is held in trust, the trustees will usually need to be involved in any sale or transfer, and additional requirements, such as registering the trust with HMRC’s Trust Registration Service, may apply.

Identifying and understanding any trust arrangements early can help avoid delays later in the administration process.

How long does a Probate Property Sale Take?

Every estate is different, but a typical probate sale will often involve the following stages:

• Registering the death and securing the property
• Locating the Will
• Valuing the estate
• Preparing and submitting the inheritance tax return (if required)
• Applying for probate
• Marketing the property
• Agreeing a sale
• Dealing with legal enquiries
• Exchange of contracts and completion

The timescale will depend on the complexity of the estate, probate processing times and the property transaction itself including the number of parties in the chain.

Common Issues that can Delay Matters

Several factors can complicate the sale or transfer of a property after death, including:

• Trust arrangements affecting the property, particularly where these have not been identified at an early stage
• Questions over who has an interest in the property
• Property titles that were not updated following an earlier death
• Unregistered properties where deeds need to be reviewed carefully or where deeds and documents are missing

Seeking advice early can help identify and resolve these issues before they impact a transaction.

Key Points to Remember

When dealing with a family home after someone dies, it is important not to rush decisions.

Gather paperwork early, understanding who has authority to make decisions and obtaining probate before progressing too far with a sale can help avoid unnecessary delays. Taking time to understand the ownership position and the wishes of all beneficiaries can also make the process smoother for everyone involved.

How We can Help

Our experienced Wills, Trusts & Probate and Residential Conveyancing teams regularly work together to help families navigate property matters following a death. Whether you need assistance obtaining probate, understanding ownership arrangements or dealing with the sale or transfer of a property, we can provide clear and practical guidance.

To discuss your circumstances, please contact us.

About the Author

Gill is a Legal Executive in the Residential Conveyancing team at Machins Solicitors. Having joined the firm in 1997, Gill has extensive experience across a range of legal practice areas and now specialises in probate property sales and transactions involving Powers of Attorney. She works closely with executors, attorneys and families to guide them through property matters with practical advice and a sensitive, supportive approach