Allen Markel, REALTOR® · Texas Premier Realty

Selling

Can I sell an inherited house in Texas before probate is finished?

Answered by Allen Markel, REALTOR®, Texas Premier Realty ·

Short answer

Usually not, until the court has determined who can sign. The title company will not insure a sale without that. Normally it means an independent executor holding letters testamentary, an order admitting the will as a muniment of title, or a court determination of the heirs. After that, a sale can go forward even while the estate is still open. Ask a probate attorney which situation you are in.

Texas Estates Code Sec. 101.001 says that when a person dies, the estate devised by a will vests immediately in the devisees, and the estate of a person who dies without a will vests immediately in the heirs at law. Sec. 101.051 adds that the estate vests subject to the payment of the decedent's debts.

When a personal representative is appointed, the authority to sell is what the law and the court give that person. An independent executor has the same power of sale for the same purposes as a supervised representative has, but without the requirement of court approval and without the procedural requirements of a supervised administration, unless limited by the will (Sec. 402.052). In a supervised administration, a representative applies to the court for an order of sale, the clerk issues a citation to persons interested in the estate, and any interested person may oppose the sale (Secs. 356.251-356.254). So the answer to can I sell yet? starts with what kind of administration exists and what letters have been issued.

Buyers and title companies want proof that the seller can convey good title. For an independent executor, Sec. 402.053 protects a good-faith buyer who is not an heir or devisee if a power of sale is granted in the will, or in the court order appointing the executor, or the executor records a sworn affidavit that the sale is necessary or advisable for purposes such as paying expenses and claims. The signature of a devisee or heir is then not necessary for the purchaser to obtain the estate's interest.

What a particular title company requires beyond that is not in the statute sections I read. Some will want certified letters and a recorded affidavit; others may want more. Ask the title company early.

My role: I value the house, prepare it, market it and handle the contract. The attorney tells the executor or heirs what documents are needed before the contract is signed. An executor should not sign a contract before the attorney confirms the authority.

Common follow-up questions

Do I need court approval to sell as an independent executor?

Generally no. Estates Code Sec. 402.052 gives an independent executor the same power of sale as a supervised representative, without court approval, unless the will limits it.

Who owns the house right after someone dies in Texas?

Under Estates Code Sec. 101.001, the estate vests immediately in the devisees under the will or in the heirs at law, subject to the payment of the decedent's debts (Sec. 101.051).

Can a buyer rely on an independent executor's authority?

Under Sec. 402.053, a good-faith buyer who is not an heir or devisee may rely if the will or court order grants a power of sale, or the executor records the sworn affidavit the section describes.

Sources

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