When the seller has died.
Heirship and probate add time to a file. How much time depends almost entirely on questions you can ask at the listing appointment.
A family calls you about selling mom's house. Everyone agrees on what should happen, nobody is fighting, and the property has been in the family for thirty years. It still may not be sellable next month, because a dead person cannot sign a deed and the law has specific ideas about who can sign in their place.
You are not going to solve this on your own, and you should not try. What you can do is find out early which road the file is on, because the difference between the shortest path and the longest one is measured in months.
The first question: was there a will?
Everything branches here, and the answer changes both the process and the people who have to sign.
If there is a will
Muniment of title
This is the fast lane, and it exists almost nowhere else in the country. When there is a valid will and no unpaid debts other than those secured by real estate, a Texas court can admit the will as a muniment of title. No executor is appointed and no administration is opened. The court's order becomes the link in the chain of title, effectively letting the will operate like a deed.
When a family qualifies for this, the property problem is solved in a fraction of the time and cost of a full probate.
Independent administration
The workhorse of Texas probate. An executor is appointed and receives letters testamentary, then handles the estate with very little ongoing court supervision. Once those letters issue, the executor can sign a deed. Slower than a muniment, far faster than the alternative.
Dependent administration
Court supervised at every step, generally where there is conflict, significant debt, or no one the court is willing to turn loose. A sale can require court approval. If your file is here, plan on a long runway and set the seller's expectations accordingly.
The four year rule catches families constantly. A will generally has to be offered for probate within four years of death. After that, Texas presumes the person died without one, and getting a late will admitted requires convincing the court the applicant was not at fault for the delay. A will sitting in a drawer since 2019 is not the same asset the family thinks it is.
If there is no will
Affidavit of heirship
A sworn statement identifying the decedent's heirs and family history, signed by two disinterested people with personal knowledge of the family, then recorded in the real property records of the county where the land sits. It is quick and inexpensive compared with anything involving a courtroom.
It also has real limits. It works best where there is no dispute among the heirs and no meaningful unsecured debt. The statute gives a recorded affidavit prima facie effect after five years have passed, and some underwriters are more comfortable once that period has run. Banks and retirement plans generally will not accept one at all, so if the estate has accounts as well as a house, the family may end up in probate regardless.
Who the heirs actually are
An affidavit of heirship is only as good as the list of heirs in it, and that list is not a family decision. Texas law sets it, and the answer turns on two things: whether the property was community or separate, and whether every child of the decedent is also a child of the surviving spouse.
Community property
- If all of the decedent's children are also children of the surviving spouse, or there are no children at all, the decedent's half of the community estate passes entirely to the surviving spouse. The spouse ends up owning the whole thing.
- If even one child is not also the surviving spouse's child, the decedent's half passes to the decedent's children. The surviving spouse keeps their own half and inherits none of the decedent's. This is the rule that blindsides blended families, and it is the one you will run into most.
Separate real property
- With children or descendants: the surviving spouse takes a life estate in one third of the land. The children and their descendants take the other two thirds outright, plus the remainder interest in the spouse's third.
- With no children or descendants: the surviving spouse takes half of the land outright, and the other half passes to the decedent's parents, siblings, or their descendants. If there are none of those, the spouse takes it all.
That life estate is the one agents should watch for. A surviving spouse with a life estate in one third of the land is not the owner and cannot convey the property alone, and the children who do own it cannot deliver clear title without the spouse. Everybody signs, or nobody sells. Separately, a surviving spouse also has the right to occupy the homestead, which can prevent a sale even when the heirs agree.
With no surviving spouse, the estate passes to the children and their descendants, and if there are none, up the family tree to parents, then siblings and their descendants, then further out. Each of those people is a signature on your deed.
Determination of heirship
A court proceeding where a judge decides who the heirs are and what each one takes. The court will typically appoint an attorney ad litem to represent unknown or missing heirs. This is where a file goes when heirs disagree, when nobody can reliably identify the family, or when an underwriter will not accept an affidavit.
Why heirs are often surprised by who inherits
Without a will, Texas decides, and the answer depends on whether the property was community or separate and on whether the children are from the current marriage or an earlier one. A surviving spouse frequently ends up owning less than the family assumed, and children from a first marriage can appear on title in a way nobody at the kitchen table expected.
This is also why "we all agree on what mom wanted" does not settle anything. The question is not what the family agreed, it is who the law says owns the property, and every one of those people signs.
Two things that quietly stall these files
- Medicaid. If the decedent received certain long term care benefits, the state may have a claim against the estate. That claim has to be addressed, and it can take the simplest path off the table.
- The heir nobody mentioned. A child from an earlier relationship, an heir who has also died, a family member out of contact for years. Every one of them is a signature or a court proceeding, and they surface late because nobody thought to bring them up.
Ask this at the listing appointment
- Is the person on the deed still living? If not, when did they pass?
- Was there a will, and has it been probated?
- Has anything been filed at the courthouse, and is there an executor or administrator?
- Who are all the children, including from any earlier marriage, and is everyone still living?
- Was the decedent married at the time of death, and is the spouse still living?
- Did the decedent receive Medicaid or long term care benefits?
Ask these gently. You are usually talking to someone in the middle of grief, and the reason for the questions is worth saying out loud: you are trying to keep the sale from falling apart later.
How to set expectations without scaring the family
"When an owner has passed, Texas needs a legal record of who has the right to sign. Sometimes that is quick and sometimes it takes a while, and which one depends on a few facts about the estate. Let's find out now, before we're under contract with a buyer waiting on us. I'll get my title contact involved early so we know exactly what your family needs to do."
Where your job ends
Heirship and probate are legal work. An agent who drafts an affidavit, tells a family which path to take, or assures them a document will be accepted has stepped over a line. Your job is to spot it early, get the family to an attorney, and get the title company looking at it while there is still time.
Every estate is different, and the same facts can be viewed differently by underwriters depending on the details of the file. What one company accepts, another may not. Always consult your escrow officer, who can take the specifics to the underwriter and tell you what will actually be required. Title and Lender requirements are separate as well, so clearing one does not mean you have cleared the other.