Executor Powers and Property in Probate
An executor derives their authority from the will and from the grant of probate issued by the Probate Registry. Before the grant is obtained, the executor has limited authority and cannot enter into binding legal agreements on behalf of the estate — including mortgage contracts. This means that remortgaging a property during the probate process, before the grant is issued, is not legally possible in the estate's name.
After the grant of probate is issued, the executor has authority to deal with the estate for the purpose of administering it — collecting assets, paying debts, and distributing the remainder to beneficiaries in accordance with the will. The powers of an executor to borrow money and charge the estate's assets as security for borrowing are limited and specific. The Trustee Act 2000 and the terms of the will itself define what an executor can and cannot do. In most standard wills, the executor has no power to take out a new mortgage on the estate's behalf.
Where the property already has a mortgage when the deceased dies, the existing mortgage continues. The lender is notified of the death and the mortgage continues to accrue interest. Most lenders will give the estate reasonable time to sell the property or transfer it to a beneficiary, but they are not obliged to extend the mortgage indefinitely. If the existing mortgage was subject to a product that is due to expire, the estate may need to manage the transition carefully to avoid reverting to a lender's SVR at significant cost.
Executors who are managing a probate estate with a mortgaged property should seek advice from a probate solicitor alongside any mortgage broker they consult. The interaction between probate law and mortgage law can be complex, and the consequences of acting without authority — for example by attempting to take out a new mortgage on an estate property — can be serious for the executor personally.
Registered vs Unregistered Title in Probate
The title of a property — whether it is registered at HM Land Registry or unregistered — affects how the estate is administered and how any subsequent remortgage or sale is processed. The vast majority of properties in England and Wales are now registered at HM Land Registry, having been brought onto the register when they were last purchased or mortgaged. However, a significant number of older properties, particularly those that have been in the same family for many decades and have not been sold or charged recently, may still be unregistered.
For registered properties, the title at Land Registry will show the registered proprietors — the deceased and any joint owner — and the legal charge held by any existing mortgage lender. On death, the personal representatives (executors or administrators) can be entered on the register as new proprietors, and from that point they can deal with the property in accordance with their powers. The Land Registry has a defined process for handling transfers on death, including the form AP1 and appropriate evidence of the grant of probate.
For unregistered properties, the title is evidenced by a bundle of title deeds going back at least 15 years, and ownership is demonstrated by a chain of documents rather than a central register. Unregistered title in a probate situation is more complex and typically requires a solicitor experienced in both probate and conveyancing to trace and verify the ownership chain before any transaction can proceed. Most lenders are unwilling to advance a new mortgage on unregistered title without a simultaneous first registration at Land Registry.
First registration of an unregistered property at Land Registry is a process that can be done by the estate's solicitors and should be done at the time of any transfer to a beneficiary. From the point of first registration, the title becomes simpler to deal with for all future transactions including any subsequent remortgage.
