Navigating a property clearance after a loved one passes or moves into care: Insights from a legal perspective
- lifeatredhouse
- Jul 8, 2024
- 7 min read
Dealing with the loss of a loved one can be incredibly emotional, with the process of clearing their property adding an additional layer of stress and complexity you can't really appreciate until you're in the midst of the task.
From understanding the legal obligations to managing family heirlooms and sentimental items, it's not surprising most people don't know where to start. The same stress applies if a loved one has moved into care and their home has to be cleared. To shed light on the process of how to tackle a house clearance for a relative I spoke with Victoria John, an experienced Solicitor with the legal firm Savage Silk, who has over 10 years experience specialising in Private Client work including Probate Matters.
Victoria offers some valuable advice on legal considerations if you're responsible for clearing a property, answering some of the questions I often hear from people I help as a House Clearance Advisor when they're faced with the challenge. If you're navigating the process for the first time and trying to understand your responsibilities better, Victoria's insights will help provide some clarity during this difficult time.
Who has authority to undertake a house clearance for a relative or friend ?
This depends on the situation, if a person has died the ultimate responsibility falls to the executors of the estate however, it is usual for close family members to be heavily involved in the clearance. If there is no Will, it would be usual for the next of kin to be responsible for the clearance as they would likely be the person entitled to apply for any Grant of Representation.
If a person has lost capacity the responsibility will fall to their attorneys, again it is ok for the family to assist if they have not been named as attorney.
Who might need to be informed and when is it appropriate to contact the relative’s solicitor ?
If a Will has been made it should be checked by the executors to ensure that they are not selling, gifting or destroying any items which have been specifically left in the Will – this would include a property clearance for the purposes of a person going into a care home.
In the circumstances of an individual going into a care home, it might not be necessary to consult the solicitor regarding the clearance but would be advisable to let them know so that contact information can be updated.
In the circumstances of a clearance on death, where there is a Will the executors would be involved in the clearance and they would be able to let the solicitor assisting with the administration of the estate know that the clearance is taking place – they would then be able to give advice as to things to look out for and offer assistance. If there is no Will, it may be that the deceased did not have a solicitor however care should still be taken when carrying out the clearance to ensure that no important documents are overlooked.
What if you can’t find a will, is it possible to check if they’ve actually made one ?
Although it's not compulsory to register a Will, if it is believed that there may be a Will a search can be carried out with Certainty (www.nationalwillregister.co.uk - the UK's Will registration and Certainty Will Search service) however, enquiries can also be made of local solicitors that might have been employed, to ascertain whether a Will was made.
What should you keep in mind before you start ?
It is important to keep an eye out for valuable items and documents or information. If there is any uncertainty it may be necessary to bring in a professional.
Recording valuables carefully is also important when a person has lost capacity as it may be that the value of these items will be included in any care fees assessment.
If there are any disputes within the family, it would be good to have an independent person present at any clearance, this will help to avoid any disagreements in the future
Is there anything that can be done to help clear the property before probate is granted?
It is usually necessary for a property to be cleared before a Grant is issued due to the time it can take for a Grant to come back from the Registry. As values of items are required to obtain the Grant then it is a good idea to have a professional look around the property to ensure that all valuable items are accounted for and details of the values used in the Probate application.
Often, with rented properties, these need to be cleared fairly quickly to avoid the estate incurring additional fees.
When can a property go on the market for sale ?
When a person dies leaving a property empty it is possible to market the property as soon as the executors/family are ready to do so. It is important to make the estate agent and any potential buyer aware that a Grant of Probate will be required to complete the sale however all of the conveyancing work can be undertaken whilst the application for Probate is ongoing so that when the Grant is issued the sale can complete.
If a person has moved into a care home, care will need to be taken as who has the authority to market the property, if there is a Lasting Power of Attorney in place, the attorneys will be able to deal with the sale however if there is no LPA it will be necessary to ask the Court for an order to enable the sale to proceed, this is the case even if you have a Deputy Order unless it expressly states that the sale can take place.
What would be your advice on the best way to avoid family disputes ?
The best way to avoid disputes is to make sure that you have everything in order, a Will will enable you to state who you want to benefit from your assets and can include reference to a list which can be updated as regularly as you wish in relation to specific assets. An LPA will ensure that your attorneys can made decisions should you be unable to do so in the future – including dealing with the sale of the property and any assets therein.
Communicating your wishes to your close family and friends will assist but it is better to have something in writing which would struggle to be disputed.
What have you seen go wrong and how could it have been prevented ?
We have dealt with properties where, once cleared, they have been left unchecked which has led to damp issues within the property.
We have also had cases where the value of some items has been overlooked and important documents not found. This has led to delays in the administration of estates which can cause additional distress for the family and beneficiaries.
People need to remember that they can’t be specialists in everything, there are professionals that can assist them at any step of the way and, if a professional is instructed to help it will minimise the likelihood of things going wrong
I've heard a legal term used in relation to a house clearance can you explain - What is “intermeddling”?
Intermeddling is a term used in connection with the administration of an estate, it is where an executor (or administrator if there is no Will) starts to act in their role and then stops. E.g. if a person closes a bank account, receives some funds and pays some bills but then decides that they don’t want to act anymore, this would be seen as them interfering (or intermeddling) with the estate and this is not allowed. If this has happened, it may be necessary to ask the Court for an Order that that particular person can step down officially.
The best way to avoid this is to think carefully before taking any action, administering an estate is not always an easy task, it is time consuming and there are things that, as an executor or administrator, you have to get right to avoid claims being made against you in the future.
What would be your advice, as a solicitor, to help someone responsible for the clearance to get through the process with less stress ?
My honest advice would be, if possible, don’t rush the task and get a second opinion from a professional person if you are unsure about anything - it is far better than doing something wrong. We have many clients call us to ask can they do this or can they do that? Our answer is usually yes, perhaps with a bit of advice attached to certain items or pointing them in the way of another professional who can assist but there are times when we have had to reign clients in so that they don’t do something too soon and risk claims against them in the future.
If the property is an estate property, the last thing you would want is for beneficiaries to make a claim that something valuable had been destroyed simply because you were not aware of its value. In a care home situation, the Local Authority could make the same claims, as the sale of a valuable item could have a huge impact on a persons finances and ability to pay for their care.
If in doubt about anything consult a professional for advice, help and support.
Victoria John has been a solictor for 14 years, specialising in Private Client for 10 years dealing with the preparation of Wills, Lasting Powers of Attorney and Probate Matters. She has been a member of The Association of Lifetime Lawyers (formerly Solicitors for the Elderly) since 2017.
or by calling the Savage Silk Practice on 0345 209 4700
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