My Grandmother died earlier this year. She lived in a property from 1960 onwards with her husband (my Grandad) who died in 2019. They had one child (my Dad) who died, unexpectedly, in 2017. My Dad had 2 children: myself and my sister. We are all British citizens and have lived in England for the duration of our lives. The property is in the England so this question applies to the laws there.
My grandparents had a Property Trust Will and lived as Tenants in Common as part of that arrangement.
My sister and I are selling the property they lived in. We have 2 solicitors, who are separate individuals, but who work at the same solicitors firm.
The solicitor dealing with my grandparents Will advised that my sister and I would need to wait for a Grant of Probate before we would be able to complete on the sale of the property. They did however advise we were able to market the property for sale, secure a buyer etc, as long as we advised the buyer we would not be able to complete on the sale until probate had been obtained.
We found a buyer and negotiated a price within a couple of weeks of putting the property up for sale. The matter is progressing and nearing exchange of contracts.
The second solicitor - who is dealing with conveyancing of said property - advised that we would be able to complete on the sale without obtaining probate first. They said the reason for this was
the sole surviving named proprietor on the Title of the property, even as a trustee, can action the sale without probate being granted.
On the Title for the property - from HM Land Registry - it states in Section B that in March 2020 the "proprietor" was my Grandmother, and my sister. The date of this is after my Grandad's death, but before my Grandmother's death. We understand this occurred as part of the arrangements in my Grandad's Will being executed, i.e. the Property Trust Will.
There are 2 "restrictions" on the Title, which also have the same date in March 2020 mentioned above.
No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.
No disposition by the proprietors of the registered estate is to be registered unless one or more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificates, that the disposition is in accordance with the Trusts declared at Clause 4 of the Will dated ___ of ___ or some variation therefor referred to in the declaration statement or certificate.
Where I've put ___ above it states my Grandad's name and the date his Will was written.
I have several questions about this:
- Who is responsible for determining whether my sister and I are actually allowed to sell the property under these circumstances?
- Is the second solicitors advice that my sister and I can sell this property without having obtained probate correct?
My sister and I have provided ID to the solicitors firm we are using and our estate agent. Given that the first solicitor was dealing with matters since my Grandad's death in 2019 they are aware of the full history of the matter, including seeing Death Certificates for both of my Grandparents.