No Will, One House in Texas. What to Check Before You Try to Sell It

Title to a house in Texas passes at the moment of death, not at the end of a court case. The Estates Code vests the property immediately in the heirs, subject to debts and administration, which means the heirs already own it while the deed still carries a dead person's name. That gap between ownership and provable ownership is the whole problem. A buyer's title company will not insure a sale on the strength of a family's account of who the heirs are, and the tools for closing that gap differ sharply in cost, in speed, and in how much weight an underwriter gives them.

First, work out who actually inherits

Texas intestacy is not a single rule, and the answer turns on marital status, on whether every child is also the surviving spouse's child, and on whether the house is community or separate property. A house bought during the marriage with community funds passes entirely to the surviving spouse when all children are shared, but the decedent's half goes to the children when any child is from an earlier relationship. Separate real property splits differently again: children take the property, with the surviving spouse holding a one-third life estate. A careful reader checks the deed date, the source of the down payment, and the marriage history before assuming anything.

Then count the branches. Children of a predeceased child take that child's share by representation, which turns one heir into four, and half-siblings, adopted children, and children born outside a marriage all have defined places in the statute. Homestead rights and exempt property claims sit on top of the ownership analysis rather than replacing it, so a surviving spouse may have the right to occupy a house she only partly owns. Getting this wrong is expensive later, because a missing heir is a cloud on title that surfaces at the worst moment, usually a week before closing.

The affidavit of heirship, and what an underwriter does with it

An affidavit of heirship is a sworn statement of family history, signed by two disinterested witnesses who knew the family and stand to gain nothing, and recorded in the real property records of the county where the land sits. It costs recording fees and whatever an attorney charges to draft it, which is modest compared with a court proceeding. Under the Estates Code it becomes prima facie evidence of the facts it recites after five years on record. Before that, it is evidence a title underwriter may accept, may accept with conditions, or may decline.

What a careful reader checks is the underwriter's actual appetite, in advance, in writing. Practices vary: one company will insure on a well-drafted affidavit with two solid witnesses, another wants two separate affidavits from unrelated families, and a third will not touch it if the estate has creditors, if a minor is an heir, or if any heir disputes the recital. Ask the title company for its requirements before paying for the document, because an affidavit rejected by the underwriter is still money spent and still recorded.

The small estate affidavit and its narrow lane

Chapter 205 allows a court-approved small estate affidavit when there is no will, no pending administration, assets exceed known liabilities excluding the homestead and exempt property, and the estate's value stays under the statutory ceiling on the same exclusions. It is filed with the probate court and requires a judge's approval, so it is not the informal document its name suggests. Its critical limit for real estate is that it transfers only the decedent's homestead. Rental houses, vacant lots, and inherited acreage fall outside it entirely, and some title companies remain cautious even on the homestead.

When a court proceeding is the cheaper answer

A judicial determination of heirship under Chapter 202 produces a court judgment naming the heirs and their shares, and the court appoints an attorney ad litem to search for unknown heirs, which is precisely the assurance an underwriter wants. It costs more, in filing fees, in the ad litem's fee, and in attorney time, and it takes weeks rather than days. Against a house worth six figures and a buyer under contract, that is often the economical choice. Federal reporting sits alongside all of this: the Internal Revenue Service is responsible for estate tax rules and for the basis adjustment heirs receive at death, so the date-of-death value is worth documenting while it is easy to establish.

Call the title company first, describe the family exactly as it is, and let its requirements pick the instrument. That single call reorders the whole sequence in the heirs' favor.