Selling
How do I sell a house when the owner died without a will?
Answered by Allen Markel, REALTOR®, Texas Premier Realty ·
Short answer
When someone dies without a will, Texas law decides who inherits, and the house passes to the heirs at law when the person dies, subject to the estate's debts (Estates Code Secs. 101.001(b), 101.051). Who the heirs are depends on whether there is a surviving spouse and descendants (Secs. 201.001-201.003). To sell, title usually has to be cleared by a court determination of heirship, an administration, or another method your attorney recommends. An affidavit of heirship has limited weight until it has been of record five years (Sec. 203.001).
Chapter 201 of the Estates Code sets the order. If the person leaves no spouse, the estate passes to the person's descendants, and if there are none, to the parents, then siblings and their descendants, and so on (Sec. 201.001). If there is a surviving spouse, the rules split the separate estate and the community estate. For the community estate, it passes to the surviving spouse if no descendant survives or if all surviving descendants are also descendants of the surviving spouse; otherwise the deceased spouse's undivided one-half interest passes to the deceased spouse's descendants who are not also the surviving spouse's descendants (Sec. 201.003). A house is usually the main community asset, so the answer depends on the situation, and an attorney should confirm it.
At death the estate vests immediately in the heirs at law (Sec. 101.001(b)), subject to the debts of the estate (Sec. 101.051). Adopted or half-blood relationships and other details can change the answer, which is another reason to have an attorney confirm who the heirs are before anyone signs a contract.
A court may conduct a proceeding to declare heirship to determine the decedent's heirs and only heirs and their shares (Estates Code Secs. 202.001-202.002). A recorded affidavit of heirship is also used. Under Sec. 203.001, a court must receive a recorded statement of facts about heirship as prima facie evidence if it is an acknowledged instrument that has been of record for five years or more in the deed records, which means a fresh affidavit does not have that effect yet, and an error can be proved by anyone interested.
Which route fits depends on the heirs, the title company, and whether debts require an administration. I do not choose it. Your attorney will.
When the heirs are ready, I can value the house, coordinate with the title company that will insure the sale, and handle the marketing and negotiation. Expect the title company to ask for the legal documents that show who can sign.
Common follow-up questions
Does the house automatically go to my spouse or my descendants?
It depends on the situation. Estates Code Secs. 201.001-201.003 set the order of inheritance, with different rules for the community estate and the separate estate.
What is a proceeding to declare heirship?
A court proceeding to determine a decedent's heirs and only heirs and their shares. Estates Code Sec. 202.001.
Is an affidavit of heirship enough to sell?
Sec. 203.001 treats a recorded statement of facts as prima facie evidence once it has been of record five years. Whether a title company accepts a newer one depends on the company. Ask your attorney.
Sources
Talk it through with Allen
A short call can turn a general answer into one for your address, your timeline and your numbers.
Related questions
Do all the heirs have to agree before the house can be sold?
It depends on whether there is an executor with authority to sell. If an independent executor has a power of sale, the signature of an heir or devisee is not necessary for a good-faith purchaser to…
Read answerCan I sell an inherited house in Texas before probate is finished?
Usually not, until the court has determined who can sign. The title company will not insure a sale without that.
Read answer
Answers describe transactions and public data. They are not legal, tax or financial advice.