There are so many things to know – and learn – when it comes to Wills, Trusts, Probate and Estates that it can be very confusing at times.
It can be a very grey area when an Estate is being sold through Probate and there is a trust involved.
A Trust in Probate is a Trust that either already exists or is created when someone dies and then comes into effect during the administration of their estate.
It means that instead of assets passing directly to beneficiaries, they are held and managed by Trustees for the benefit of those beneficiaries.
What happens when property is involved?
When a property is sold as part of administering an estate, the process can often be more complicated than a standard residential sale. In some cases, particularly where a Trust is involved, additional legal requirements now apply, including the need to register the Trust with the Trust Registration Service (TRS).
Understanding how these elements fit together is very important to ensure a smooth transaction and avoiding unnecessary delays. First - back to the basics:
What is a Probate sale?
A Probate sale occurs when a property is sold following someone’s death, usually by the executors or administrators of the estate.
Before the sale can proceed, the legal authority to deal with the property must be established - typically through a Grant of Probate or Letters of Administration. Once this is in place, the executors can market and sell the property in order to distribute the estate in accordance with the Will or intestacy rules.
While this may seem straightforward, complications can arise - particularly where the property is held within a trust or where the Will creates a Trust structure.
Where does a Trust come into play?
A Trust may already exist, or it may be created by the terms of the Will itself.
Common scenarios include:
- Property held in Trust for beneficiaries
- Life interest Trusts (for example, where one person can live in a property during their lifetime before it passes to others)
- Discretionary Trusts created within a Will
- Situations involving minor beneficiaries.
In these cases, the executors may also act as Trustees, and the property may need to be dealt with in accordance with the terms of the Trust.
What is the Trust Registration Service (TRS)?
The Trust Registration Service is a UK government register introduced to increase transparency around trusts.
Many Trusts, including some created through Wills, must now be registered with TRS, even if they do not generate income or have an immediate tax liability, there is a key rule for probate: Will Trusts typically only need to be registered if they continue to exist more than two years after the date of death.
Failure to register a Trust when required can lead to delays, particularly when dealing with property transactions. There could also be fines or penalties triggered.
How can TRS affect a probate sale?
If a property is held in or passes into a Trust, the Trust may need to be registered before the sale can proceed.
This can impact the transaction in several ways:
- Delays in progressing the sale if TRS registration has not been completed.
- Additional compliance requirements for solicitors acting on the transaction.
- Requests for further information from buyers’ solicitors.
- Potential complications if Trustees have not been formally identified or documented.
In practice, this means that what appears to be a routine Probate sale can become more complex if Trust arrangements are not identified early.
Why does early advice matter?
Identifying whether a Trust exists - and whether it needs to be registered at the outset can save time and reduce the risk of delays.
This is where experienced legal support is extremely valuable.
How Coles Miller can help
Our Wills & Probate and Residential Conveyancing teams work closely together to support clients through Probate sales involving Trusts.
Our Private Client specialists can advise on whether a Trust has been created under a Will and assist with the wider administration of the Estate. This includes reviewing the terms of the Will and identifying any Trust arrangements that may impact how assets, including property, are managed or distributed.
We can also determine whether a Trust requires registration with the Trust Registration Service (TRS) and handle the registration process on your behalf. In addition, we ensure that Trustees fully understand their duties and responsibilities, helping them navigate what can often be a complex legal and administrative role.
By addressing these issues early in the process, we help minimise the risk of delays or complications later in the transaction.
Residential Conveyancing team
Our conveyancing team understands the additional requirements that arise when selling a property through Probate, particularly where a Trust is involved. We can manage the sale of Probate properties efficiently, liaising with buyers’ solicitors on any trust-related requirements and ensuring that all legal documentation is in place to support a smooth transaction.
By working closely alongside our Wills & Probate team, they can identify and resolve any issues quickly. This joined-up approach helps to minimise delays, address complexities early, and keep the transaction progressing as smoothly as possible.
A collaboration
Probate sales involving Trusts require both technical expertise and clear communication.
By working collaboratively across departments, we provide a seamless service - ensuring that both the Estate administration and the property transaction progress as smoothly as possible.
Supporting you through the process
Dealing with the sale of a property after a loved one’s death can be challenging, particularly where legal complexities such as Trusts, and registration requirements are involved.
With the right advice and support, the process can be managed efficiently and with confidence.
If you are involved in a probate sale or have questions about trusts and TRS registration, our experienced teams would be happy to help.
Get Expert Legal Advice on making A Will
Contact Trust Executive ATT (Fellow) Taras Tymofijiw for expert legal advice on Trusts in probate and registering with TRS.
Taras can assist you with your Trust compliance queries ranging from Trust Registration Services to Trust tax return preparation and calculations of tax due along with R40 tax reclaim forms for beneficiaries..
Contact Taras at our Poole office.
