We had been nearly to alternate on our new residence however the aged vendor died – what occurs now?

My wife and I are on the brink of exchanging contracts on a new house. We had already sent our solicitor the 10 per cent deposit, a completion date had already been earmarked for late January and we have already been getting quotes from removals firms.

But the worst possible thing has happened. The elderly man who was selling us the property has died. 

Everything had basically been signed, bar one last contract document by the seller. We thought for a bit that he might have just gone on holiday or was ill, but after two weeks of radio silence, their solicitor has now confirmed they have in fact passed away.

Obviously this must be distressing for the sellers’ family, but selfishly we are also worried we are about to lose our dream house and our own sale. 

Our solicitor has said that we will have to wait for the executors of his will to make a decision and that may take months. They may need to consult with the beneficiaries of his will and could even decide not to sell.

Have you ever come across this before? Is there anything we can do to push through the purchase? Otherwise we will have to pull out and lose our own buyer or wait and hope for the best and move into rental accommodation.

Ed Magnus of This is Money replies: This is a nightmare situation, but will come up from time-to-time given how long the sales process can drag on for.

Unfortunately, as the seller has died, the property is now an asset of his estate and only his Executor has authority to sell. 

The Executor is the person or people named in their will. They are given the responsibility of managing the estate of the deceased and carrying out their wishes. 

Alternatively, if the seller has died without a will, it will be a court ordered administrator that oversees things. 

There is likely to be a lengthy delay before you are back in a position to potentially exchange contracts – and the sale is far from guaranteed.

If you are prepared to wait and take a risk, then it would be worth discussing your options with the estate agent selling your home with, the agent you’re buying through, and your solicitor to try and work out the best way forward. 

Don’t make any rash decisions. 

For expert advice we spoke to Lorna Hopes, mortgage specialist at the chartered financial advisers Smith & Pinching, Kirstie Carr, joint head of Private Client at WSP Solicitors, Andrew Boast, co-founder of SAM Conveyancing and Paula Higgins, founder and chief-executive of property advice website HomeOwners Alliance.

Paula Higgins replies: This sadly it does come up from time to time in conveyancing.

The key point is that until contracts are exchanged, either side can walk away for any reason – including death. 

Because the seller died before exchange, the sale is not legally binding and cannot simply be pushed through.

Your solicitor is right. The property now forms part of the deceased’s estate, and no one has authority to sell it until executors are formally appointed and a grant of probate is obtained, which commonly takes several months. Even then, the beneficiaries may decide not to proceed with the sale.

Lorna Hopes replies: I’m afraid to say your transaction has been thrown into limbo by the seller’s death and it could be several months until the deadlock is broken.

Of all the many ways a purchase can be stopped in its tracks, this has got to be one of the most unfortunate. 

Even though no-one has done anything wrong, it will make life tricky for everyone.

Your solicitor is correct. When a seller dies before signed contracts have been exchanged, the sale does not automatically complete – even if there is only one signature missing.

In English law nothing is binding about a property transaction until the exchange of signed contracts.

Given that the seller can no longer sign, the sale has to go on hold until the executors of the seller’s will (or the administrators if there is no will) are legally empowered to act.

This means waiting until the death has been registered, and a Grant of Probate has been made. This process can take three to four months, or even longer.

Once probate is granted, the transaction can be restarted if the executors are happy to proceed with the sale. This would require new contracts to be signed.

However the executors will be under no obligation to continue with the sale if they do not wish to, or if they feel it is not in the best interest of the Estate.

There is some good news in all this though, about your 10 per cent deposit. Your solicitor should be holding this on your behalf, and you will be entitled to get it back if the transaction does not proceed.’

What are the chances of the sale going ahead? 

Kirstie Carr replies: We come across this a lot with a number of referrals from our Residential Conveyancing Department when sellers die during the transaction.

The Executor will need to consider the position before proceeding with any action with the property, as they have to act in the best interests of the beneficiaries. 

There might be a direction in the will as to what is to happen to the property.

They are likely to need to consult with the beneficiaries before deciding to proceed with a sale. 

In any case, the Executors may need to obtain a Grant of Probate, if they do agree to sell.

Is there anything they can do? 

Kirstie Carr replies: There isn’t anything that can be done to push the sale through in its current position and with the current contracts, even if they had been signed but not exchanged before the seller’s death, as the seller would now be the Executors.

It is advisable to engage with the seller’s conveyancer who may be able to obtain more information about the Executor’s position so that you can make an informed decision about how to proceed.

Paula Higgins replies: Although everything felt agreed, the missing signature is crucial. Until exchange, nothing is binding. 

That means your realistic options are either to withdraw and protect your own sale, or to move into rental accommodation while you wait – accepting that this could take many months and that you will need a clear back-up plan if the sale does not go ahead.

How long could it take for probate to be granted? 

Andrew Boast replies: When a seller dies, the transaction is unable to proceed until the deceased’s executor/administrator obtains a grant of probate. 

The probate office has a current timeframe of 16 weeks to provide a grant of probate. 

Once issued, the executor or administrator has the legal power to sell the property on behalf of the deceased’s estate.

Once probate has been issued, the seller’s solicitor must send an original certificate to the buyer’s solicitor. The executor will then sign the legal documents and an exchange can proceed.

The issue for the buyer is waiting for the probate which may mean their mortgage offer expires; it lasts six months. This would effect everyone in the chain.

You may find that if you are in a long chain, you may need to break the chain to allow the top to complete at a much later date.