Post probate asset sales

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I’m the executor of my mother’s will. We have passed probate and have gone sale agreed on one property. This property sale will be enough to pay off the Fair Deal obligation to Revenue, legal fees to date and make a disbursement to me and my two siblings.

Does the solicitor my mother left the will have to be involved in the sale of the first property, apart from receiving the funds from the sale?

Is the buyer of the property the one that needs to pay for or arrange conveyancing? Would our solicitor have any involvement?

The second property is unlikely to be sold in the near future, which may complicate things.🤷‍♂️

Thanks

coylemj

The executor can use any solicitor for probate and/or for the disposal of any property of the estate. Some solicitors embed wording in a will saying that he/she is to be used to do the probate and a lot of executors think they are bound by this clause - they are not.

That wording was in a will ('I direct that Messrs. Markby, Markby and Markby solicitors be used … ' ) where I was named as executor but I ignored it and did personal probate, saved a bundle in the process.

Even without that wording, another sneaky trick is to delay handing over the will when the executor lets it be known that they are going to use a different solicitor. Because the other solicitor cannot lift a finger to start the process of probate until they have their hands on the actual will. Under pressure from the beneficiaries of the will to get things moving, some executors cave in and give the original solicitor the business.

The sale of the property will be conducted as per any private sale - there will be legal expenses on both sides. Vendor (you) and the buyer each engages their own solicitor to conduct the sale and each pays his own solicitor for their services.

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One final question, the solicitor saw on their file that my mother had applied for retention on an extension 15 years ago, but had no update as to what happened.

The retention was granted, extension remains on the property. The architect that did the application is deceased. The solicitor acting on out part is requiring us to prove the retention was approved. Should that not be the concern of the buying party’s solicitor?

Peregrinus

No. You can make it the concern of the buyer by saying, in effect, "We do not claim that retention permission was granted. Make your own enquiries and then decide what (if anything) you are willing to pay for the property, given the uncertainty over this issue".

But it's a reasonable query for a purchaser to raise, and most sellers would try to satisfy it if they could. Most sellers want to sell, and they want to get the best price they can, so they have an interest in resolving queries like this and they try to do so.

In the OP you say:

Is the buyer of the property the one that needs to pay for or arrange conveyancing? Would our solicitor have any involvement?

Both the seller and the buyer will need to appoint solicitors, but you don't have to use the solicitor who drew up the will — you can use any solicitor, other than the one who acts for the buyer. The seller's solicitor draws up the contract of sale and assists with resolving any queries or concerns buyers may have. The buyer's solicitor raises queries and concerns, advises the buyer on their importance or implications, deals with the lender (assuming there is a lender involved) and draws up the actual instrument of transfer.

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https://www.boards.ie/discussion/comment/122739254#Comment_122739254

“But it's a reasonable query for a purchaser to raise, and most sellers would try to satisfy it if they could.”

Absolutely, but the buyer hasn’t queried it. It’s our solicitor that’s demanding proof. Maybe they are trying to anticipate a query. As it stands it’s at the sale agreed stage and a deposit has been paid. It has only been raised because our solicitor saw something on review of their file.

Markcheese

On the planning retention issue for the extension - won't any planning decision be on file with the local authority?

If the solicitor has on file the details of the retention application it should be pretty easy to track down,

Deeec

https://www.boards.ie/discussion/comment/122738600#Comment_122738600

If you go onto the councils website of whatever county your mums house is in you should be able to search if planning permission was granted for the retention. Just go into the planning section of the website and put your mum's name into the search.

You should have an answer to this query in a few minutes - very easy.

If you pm me your mum's name and county she lived in I will search for you and see what comes up

Peregrinus

https://www.boards.ie/discussion/comment/122739291#Comment_122739291

If, in fact, you have or may have an unapproved development, he needs to know — because, as you point out, a purchaser may raise it, and he wants to be ready. If it turns out that you don't have PP, or that you don't know whether you do ornot, he may want to think whether you should be proactive and include a condition about this in the contract — "the seller does not warrant that planning permission was obtained for the extension and the purchaser is precluded from raising any requisition about this".

The solicitor's job involve identifying problems that may stand in the way of you achieving your objectives, and coming up with strategies for dealing with them.

Lenar3556

https://www.boards.ie/discussion/comment/122739291#Comment_122739291

I don’t think you should see it as demanding. He needs to have an understanding of what he is selling. As others have advised, you can sell the property with or without planning permission, but the latter will tend to devalue it and limit you to cash buyers.
By the sounds of it there is a good chance that this retention was granted, at least in some form. It makes sense to get on to the relevant local authority and get hold of it.

Also, in all probability this will be raised in any case by the buyers solicitor. The deposit paid was simply a booking deposit and is fully refundable if the the buyer decides not to proceed (for any reason or none)

All parties need to work collaboratively to get these sales over the line.

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That rings a bell I think we did that years ago and it was on it.

https://www.boards.ie/discussion/comment/122739378#Comment_122739378

Thank you, I’ll look it up!

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https://www.boards.ie/discussion/comment/122739378#Comment_122739378

Okay, possibly not as clear as I remembered. It seems conditionally approved, conditions zero?

Claw Hammer

Conditions zero, means no conditions i.e. unconditional. You should get a copy of the grant from the council and give it to the solicitor. The solicitor is doing his job and by having your paperwork in order you will avoid delays. He is obliged to disclose the planning situation to the purchaser in his requisitions on title. If he doesn't know and his forced to say so it will at best lead to delay and at worst a broken sale and an unmortgageable property as well as time and money wasted. .

coylemj

Can anyone explain why the 'Decision Type' is 'Conditional' but there are zero conditions?

Claw Hammer

https://www.boards.ie/discussion/comment/122744617#Comment_122744617

It is a pro-forma so there is a box for conditions. When there are none the answer is Zero. When there are some they are numbered. Anyone looking at a decision will want to know if there are conditions and if so were they complied with.