What is Probate: A Landlord Guide

Probate and letters of administration are essential documents giving someone permission to sort out the estate of a deceased landlord and is granted to the executors of a landlord's will. Letters of administration are granted to administrators of an estate when the landlord has died without leaving a will. Effectively, they are different ways of allowing someone to step in and deal with the deceased's estate.

Probate and letters of administration are not always needed unless the estate includes property, such as the landlord's home or buy to let investments.

Applying for probate or letters of administration

Allowing probate or letters of administration is called a 'grant of representation'.If a landlord has named you as executor of a will, you must apply for probate before distributing any of the deceased's possessions, money or property.You can apply online, by post or pay a probate professional to handle the paperwork, but you must have reported the estate's value first.

If the estate is worth more than £5,000, the probate fee is £215. Probate is fee-free for estates valued at less than £5,000. If you apply for probate by post, send the completed form to HMCTS Probate, PO Box 12625, Harlow CM20 9QE. Enclose the original will, any additions (codicils) and the death certificate.

If a landlord died without a will and you are distributing the estate, you should apply for letters of administration by post using:

• Form PA1P if the deceased left a will and you are an executor seeking probate

• Form PA1A if there is no will and you want letters of administration

Send the forms, will, any codicils and death certificate to HMCTS Probate, PO Box 12625, Harlow CM20 9QE.

Probate when a landlord dies

Grant of probate or letters of administration can sometimes take weeks or even months. During that time, the executor or administrator has the same responsibilities to tenants as the landlord had. The tenancy does not die with the landlord but continues as a fixed or periodic contract as before. The terms of the tenancy agreement remain the same for the estate and renters.

During the limbo period waiting, the executor/administrator must maintain the rental property in good repair and collect rent. Selling a property is not allowed until the grant of probate, although the executor can market the home and even accept an offer while waiting for probate.

The estate has three options with rental property:

• Continue renting out a home while transferring ownership to the people named in a will

• Issuing a Section 21 or Section 8 notice to end the tenancy

• Selling the home with sitting tenants

Claiming probate expenses

The executor/administrator can reclaim reasonable expenses from the estate during probate before the residue is split among the beneficiaries.The general rule is an executor/administrator cannot claim for time spent handling probate but should not be out-of-pocket if they settle day-to-day bills for the estate.

Typical expenses are:

• Rented property repairs and maintenance

• Cleaning and house clearance costs

• Gardening costs

• House insurance

• Costs of marketing and selling a home

• Costs of evicting tenants

Jointly owned property

If a landlord jointly owns a property, the deceased' interest automatically passes to the surviving owner without the need for probate unless other assets are involved.

Probate if there's a mortgage

If a landlord dies and a mortgage is outstanding against any properties, a lender can demand immediate payment or agree that the person inheriting the property takes over the loan.

Probate when a tenant dies

A tenancy agreement does not end with the death of a tenant, but a licence does expire. The tenancy agreement is property owned by the deceased's estate and then passes to a successor. The law details what happens to secure, regulated and assured tenancies. The deceased's spouse, civil partner or unmarried partner could take over the tenancy if they lived in the property as their main home when the tenant's died.

Repossessing a home with no successor

A landlord can repossess a rented home if no successor is identified in a will or by applying intestacy rules.A landlord can start legal proceedings to possess the rented home by citing mandatory ground seven of a Section 8 Notice to Quit. If a landlord can prove a mandatory ground, the court must issue a possession order. In the event that a tenant dies, possession proceedings must start within 12 months.

Possession proceedings mean from the start of court proceedings, not the serving of a notice.The landlord can accept rent during the proceedings without creating a new tenancy unless another written agreement to change the original tenancy terms exists.

Probate and letters of administration for landlords FAQ

What's the difference between probate and letters of administration?

The difference between the two is technical. Probate is granted to an executor of a will.Letters of administration are granted to a personal representative when there is no will.

Who is a personal representative?

A personal representative is the executor of an estate or someone administering the estate of someone who has died without a will.

What's the difference between a licence and a tenancy agreement?

A licence gives someone permission to occupy a home but no legal interest in the property.However, a regulated agreement, secure or assured shorthold tenancy, gives the tenant a legal interest in the property. A landlord still needs a court order to evict a licensee, but no one has the right to succeed the tenant.

What is probate?

Probate is the process of settling the bills and distributing money, property and possessions of a person who has died according to the wishes expressed in a will. If there is no will, the rules of intestacy are followed.

Must a tenant pay rent if a landlord dies?

If a landlord dies, any tenancy agreement other than a licence continues as usual. The executor or administrator of the estate must maintain the property, and the tenant should continue paying rent.

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