Sell a house in probate in Houston

Harris County has five statutory probate courts, all sitting in downtown Houston, and they handle nothing but probate, guardianship, and related matters. If the person who died lived in Harris County, that is where the estate is opened.

A house with a Houston address in Fort Bend, Montgomery, or Brazoria County is a different matter. Each of those counties handles probate through its own courts, with its own local practice, and the estate is opened where the person lived — not where the house is. We ask which county the estate is in before anything else, because it decides who we are waiting on and how long.

Most Texas wills ask for independent administration, and most Texas courts grant it. Once an independent executor has been appointed and the inventory has been dealt with, the Estates Code says that further action in the probate court is not to be had except where the code specifically calls for it. The executor may, without applying to the court or getting an order, do anything a court-supervised representative could do with or without a court order.

For a house, that means the independent executor can sign a contract, sign a deed, and close — without a petition, a notice period, a hearing, or an order confirming the sale. That is the single biggest difference between a Texas probate sale and the process in states that supervise every step, and it is why an estate house in Houston can close in weeks rather than months once letters testamentary have issued.

Dependent administration, where the court supervises each step, still exists in Texas and is used when the will does not provide for independence, when the heirs do not agree, or when the court decides supervision is needed. If your estate is dependent, a sale needs court involvement and takes longer. The letters the court issued will say which kind you have.

A will generally cannot be admitted to probate in Texas after the fourth anniversary of the person's death, unless the applicant proves they were not in default for failing to present it sooner. A great many inherited Houston houses are sitting past that line — the will is in a drawer, everyone assumed it was enough, and nobody filed anything.

Past four years, the options narrow to proving the applicant was not in default, or treating the estate as if there were no will and establishing heirs instead. Both are workable. Neither is quick. If the death was more than four years ago, say so at the start so nobody plans around a timeline that does not exist.

Texas has a shortcut that most states do not. A court may admit a will to probate as a muniment of title — a document that proves ownership — without appointing anyone or opening an administration at all, if the estate owes no unpaid debt other than debts secured by liens on real estate, or if the court finds for another reason that administration is unnecessary.

For a house with a mortgage and nothing else owed, this is often the right path. The will gets admitted, the order itself serves as the link in the chain of title, and the beneficiaries named in the will can sell. It is faster and cheaper than an administration, and it is the first thing worth asking a probate attorney about.

Texas has a small estate affidavit, and it is often the first thing a family reaches for. It has real limits. It is available only if 30 days have passed since the death, no petition to appoint a personal representative is pending or has been granted, and the value of the estate — excluding the homestead and exempt property — does not exceed $75,000.

The part that matters for a house: the affidavit can pass title to real property only if the property was the decedent's homestead and it is the only real property in the estate. It does not transfer a rental, a second house, or an inherited house the person never lived in. If the house you are trying to sell does not fit that description, the affidavit will not clear title to it, no matter how small the estate is.

When there is no will, Texas decides who inherits by statute, and Texas is a community property state. Property either spouse possessed during the marriage is presumed community property, and it takes clear and convincing evidence to prove otherwise.

If the person who died was married and every one of their children is also a child of the surviving spouse, the surviving spouse takes the deceased spouse's share of the community property. But if there is a child or descendant who is not also the surviving spouse's — a child from an earlier relationship — the deceased spouse's one-half of the community estate passes to the children, not the spouse. A surviving stepparent living in the house may own half of it and no more. This is the rule that catches Houston families most often.

Heirs are established either through a court determination of heirship or, over time, through an affidavit of heirship recorded in the county deed records. Such an affidavit becomes prima facie evidence of the facts in it once it has been of record for five years, though it does not cut off an omitted heir or a creditor. Title companies have their own requirements for accepting one on a sale, and we work within those.

We make the offer now and close when whoever has authority can sign. If letters have issued to an independent executor, that can be immediately. If the estate has not been opened, we can wait, and the offer does not expire while you get it opened.

The title company decides what it needs to insure the sale — letters, a certified copy of the order, an heirship affidavit, signatures from every heir. We work to their list, we cover standard closing costs, and there is no commission because there is no agent. What comes out of the proceeds is what is owed against the house: the mortgage payoff, delinquent taxes, and any liens.

The death certificate, the will if there is one, anything the court has issued, and the name of the attorney if one is involved. If nothing has been filed yet, that is fine — tell us the date of death and which county the person lived in, and we will tell you what the realistic path looks like.