As a real estate lawyer, I am often asked if the Will of a deceased client must be probated before his real estate may be dealt with. There are a few issues to consider before the aforementioned question can be answered (and in this blog I will only address situations where the deceased has made a Will).
Usually most spouses own their property as joint tenants which means that the property is owned by both of them, at the same time, and upon the death of the first of them, the survivor becomes the sole owner of the property. So if your parents’ house is owned by them as joint tenants, and if one of your parents passes away, no probation of the Will of the first parent to pass away is required, and the surviving parent becomes the resultant sole owner of the property. However, upon the death of the surviving parent, the house will form part of the deceased’s estate and will be administered in accordance with the terms of his/her Will. The same applies where there is only one owner of a property, and he passes away (i.e. the deceased’s Will must be probated before the property can be transferred).
Where the sole owner of a property has passed away, which includes a final surviving joint tenant, the land registration office will not permit the registration of a sale or other transfer of the property unless a court has first probated the owner’s Will, which court order confirms the nomination of the executor/estate trustee. Once probate has been obtained from the court, the land registry records can be amended to disclose (i) the death of the owner and (ii) the transmission (transfer) of the property to the executors. The executors are now required to deal with the property in accordance with the terms of the Will. If the Will provides that the property is to be gifted to a child, then the executors will transfer the property to that child. If the property is not specifically dealt with in the Will, then the executors will list the property for sale and sell it.
As a real estate lawyer, I would suggest the following course of action for a scenario regarding Will probation: If you are in a situation where there has been a death of a property owner and you are to be appointed as the executor, you should include a provision in the Agreement of Purchase and Sale which provides that you, as executor, have applied or shall be applying to the court for probate of the Will and that if the court has not issued the probate order by the scheduled date of closing set forth in the Agreement of Purchase and Sale, you have the right to extend the closing until such time as the court has ordered probate.