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Death before completion...

View profile for Katie de Swarte
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I recently came across a situation I thought would have happened on a regular basis, but I was wrong, it is actually a very rare occurrence.

Exchange had taken place in respect of the sale of a leasehold property and a jointly owned business (father & son). A week before completion the father died. Of course the sale of the business could proceed but the sale of the leasehold property could not proceed until a Grant of Probate was obtained, and this can take some time.

Panic not, as the Executor under the deceased’s will (who in this situation was also the other joint owner of the business) or a Personal Representative can obtain an Ad Colligenda de Bona which allows specific steps to be taken in respect of the estate and is issued in expedited time.

Here’s how:

  1. Draft an Affidavit explaining the circumstances and the specific steps that need to be taken
  2. Draft the Oath;
  3. Send the sworn Affidavit & Oath to the Newcastle District Probate Registry (all solicitors applications are dealt with here) for settling (£12.00 charge for each document) – remember to explain in your covering letter why you require such a grant and note any time restraints;
  4. Whilst waiting for the return of the settled documents, inform the HMRC of the situation and seek permission to apply for the Ad Colligenda de Bona without submitting estate accounts, which will follow upon application for the full grant – send a copy of their written consent to the Probate Registry;
  5. Once the settled documents are returned make any amendments and send the Affidavit (with any exhibits) to the Probate Registry and request an order granting permission to obtain the Ad Colligenda de Bona; 
  6. The Probate Registry will inform you once the order has been made (but will not provide a copy) upon which send the sworn Oath to the Probate Registry requesting the Ad Colligenda de Bona (£45.00 fee and £1 each copy).

Although an expedited procedure, completion was delayed, but given the circumstances and as long as you keep the purchasers fully updated there is no reason for them not to cooperate.

For more detailed guidance see paragraphs 25.177 onwards on page 739 of Tristram & Cootes 30th Edition

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