Inheriting a House in Texas: Heirship, Probate and Selling It

TL;DR: In Texas, inheriting a house usually means a probate proceeding or, in narrower cases, an affidavit recorded in the county deed records. Which applies depends on the will, the debts, and the other heirs. A probate attorney decides that. Your real estate agent handles the sale.

Last Updated: November 2026

Key Takeaways

• Texas has more than one route to an inherited house: probate in court, a small estate affidavit approved by a judge, an affidavit of heirship recorded in the deed records, or a deed that passes the house automatically.
• Whether probate is needed at all depends on how the house was titled and whether a will exists. A probate attorney answers that, not an agent and not a website.
• Most title companies will not insure a sale until ownership is documented in a form they can underwrite. That is the real deadline driving the calendar.
• Property taxes keep accruing while the estate is open, and they do not wait for the court.
• The estate timeline is legal. The sale timeline is real estate. Keeping them separate is what keeps a deal together.

Table of Contents

• Do You Have to Go Through Probate in Texas?
• What Is an Affidavit of Heirship and When Does It Help?
• What Is a Small Estate Affidavit in Texas?
• What Does Texas Heirship Look Like Without a Will?
• How Do You Sell a House That Is Still in Probate?
• What Does the Tax Picture Look Like for Heirs?
• What About the Homestead Exemption After a Death?
• Common Mistakes Heirs Make
• Frequently Asked Questions

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Do You Have to Go Through Probate in Texas?

Not always — but more often than most families expect. Probate is the court process that proves a will, appoints someone to act for the estate, and clears the way for the house to sell with clean title.

If the deceased owned the house alone, with no recorded mechanism that transfers it on death, some court action is almost always required before a title company will insure a sale. If the house was held to pass automatically — joint tenancy with right of survivorship, a transfer-on-death deed, a living trust — the answer can differ, and only an attorney who has read the deed can tell you which one you have.

Texas also allows independent administration, which is why a straightforward probate here can be far less painful than the word suggests: once the court appoints an independent executor or administrator, that person can handle most estate business without returning to the judge for every step. The Texas Estates Code sets out how that authority is created (Texas Estates Code, Title 2, accessed November 2026).

Two questions decide almost everything, and they are for the attorney. How was the deed written — one name, two names with survivorship language, a trust, or a life estate? And did the deceased leave a valid will — remembering that a will naming you as beneficiary still usually has to be admitted to probate before a title company will act on it?

Texas does not require probate in every estate by statute, but title insurers work on documented authority. That gap is why informal family agreements stall at closing.

What Is an Affidavit of Heirship and When Does It Help?

An affidavit of heirship is a sworn statement about the deceased's family history, recorded in the county deed records — not a court judgment. It is Texas's non-judicial route to documenting the heirs.

The Texas Estates Code describes an affidavit of facts concerning the identity of the decedent's heirs, including a form it may follow, and makes such a recorded statement prima facie evidence of the facts it contains (Texas Estates Code, Chapter 203, accessed November 2026). In plain English: evidence of heirship, and evidence can be contested.

That word "prima facie" is where heirs get hurt. The affidavit works smoothly when every heir is known and cooperating, the property is modest, and the title company will insure on it. It becomes risky when a sibling is missing, when a family the deceased never mentioned exists, when there is debt, or when the underwriter wants a court order instead.

Who signs matters too. The form anticipates an affiant who personally knew the deceased and the family history, commonly a disinterested person such as a longtime neighbor rather than an heir with something to gain.

A realistic expectation: the affidavit is cheaper and faster than probate, and also the route most likely to be rejected later by an underwriter who wants stronger authority. Ask the attorney and the title company the same question first — "will you insure a sale on this?" — and get it in writing.

What Is a Small Estate Affidavit in Texas?

The small estate affidavit is a different animal: it goes to a judge, not just the county clerk, and applies to intestate estates below a statutory threshold.

Under the Texas Estates Code, distributees may take the estate without a personal representative being appointed when 30 days have passed since the death, no application for a personal representative is pending or granted, and the value of the estate assets — excluding the homestead and exempt property — does not exceed $75,000 (Texas Estates Code, Chapter 205, accessed November 2026). The affidavit must be sworn to by two disinterested witnesses and by each distributee with legal capacity, list all known assets and liabilities, and show the family history establishing each distributee's right. That $75,000 figure is the cap in the Texas Estates Code, not an estimate of what any estate is worth.

There is a detail in that chapter that matters enormously for a house: it explicitly says it does not transfer title to real property, except for a decedent's homestead when the homestead is the only real property in the estate. In that case, title may be transferred under an affidavit that must be recorded in the deed records of the county where the homestead sits, as provided by the Texas Estates Code (Texas Estates Code, Section 205.006, accessed November 2026).

So "can I use a small estate affidavit to sell my parent's house?" is answered: sometimes, and only if the facts line up exactly — homestead, only real property, non-exempt estate under the cap. A rental property or second parcel generally takes this route off the table.

The short version: probate in court produces an order naming the personal representative and fits an estate with a will to prove, several assets, or debt to settle. A small estate affidavit produces a judge-approved affidavit recorded for the homestead and fits an intestate estate under the Texas Estates Code cap. An affidavit of heirship produces a recorded sworn statement of heirship and fits cooperative heirs with a clean family history — when the underwriter is willing. Each is a common situation, not a determination about any one estate.

What Does Texas Heirship Look Like Without a Will?

Without a will, Texas law decides who inherits, and the answer depends on the family structure in a way that surprises many families. The Texas Estates Code's intestate succession rules are specific about what a surviving spouse takes and what passes to children, and the result changes depending on whether the children are also the spouse's children, whether the deceased held separate property, and whether parents are living. Community property adds another Texas layer that people rarely anticipate.

Three things follow: a surviving spouse does not automatically inherit the whole house, since the statute divides it. Separate property versus community property changes the math, because a house owned before the marriage, or received as a gift or inheritance, starts elsewhere. And children from different relationships can each be heirs, including children of the deceased the family may not have counted.

Because the statute is long and fact-dependent, bring a written family tree to a probate attorney before the family agrees to anything.

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How Do You Sell a House That Is Still in Probate?

You can often sell before probate closes, but someone needs the court's authority to sign for the estate — and the title company needs to see it. The sequence that usually works: get that authority first, then open title, prepare the house, sell with the estate as the seller, and close.

Authority comes from the court's appointment. In most Texas estates an independent executor or administrator can list, contract, and close without returning to the judge; whether the will or the court limited that authority is an attorney question that decides the rest of the sequence.

Title comes before the listing. Call the title company and ask what it needs to insure a sale: the probate order, a certified copy of the will, an heirship affidavit, releases from known heirs, or all of the above. That email is the most valuable document in the file.

Then the house: estate sales usually run into deferred maintenance, so inspection items are normal work.

At the contract stage, a properly administered estate names the estate through its personal representative, not the heirs personally — get the attorney's confirmation before signature. At closing, the title company pays estate debts within terms the attorney arranged, and the net proceeds go to the heirs or the estate account.

One note on timing. Texas contracts run on their own clock: the option period, the appraisal timeline, and the closing date are fixed by the contract, not the probate docket — and if the order is not signed when a buyer is ready to close, the contract date does not move itself.

If there is a will contest, a missing heir, or a dispute among siblings, the sale stops being a real estate question and becomes a legal one — no agent can move a court date. The part a real estate agent does know: according to Sully Ruiz, a Texas-licensed real estate agent (TREC #0742907) whose sponsoring broker is Keller Williams Austin NW, the step heirs most often skip is opening title before listing — in Central Texas, waiting until a buyer is under contract to learn what the underwriter needs turns a four-week closing into a two-month one.

What Does the Tax Picture Look Like for Heirs?

Two money questions land on nearly every inherited-house file, and they belong to different professionals: a tax preparer and the county appraisal district. Texas has no state estate tax and no state income tax.

Cost basis and capital gain. The IRS's published guidance is that basis in inherited property is generally fair market value on the date of death, and a sale above that basis produces taxable gain (Internal Revenue Service — Gifts and inheritances, accessed November 2026). That is the "step-up." Whether a particular value applies, and what supports it, is a question for a CPA.

Property taxes. Taxes accrue while the estate is open, and the appraisal district does not pause for a pending probate. Texas bills are due by January 31, and penalties and interest accrue after, per the Texas Comptroller of Public Accounts (Texas Comptroller of Public Accounts — Property Tax, accessed November 2026). An estate that sits a full year can pick up a meaningful bill. Ask the appraisal district for the current statement early.

What About the Homestead Exemption After a Death?

Two different things can happen: an heir who moves in and claims the home as their own homestead, or a surviving spouse who keeps the deceased spouse's senior or disabled exemption.

Heir property. Texas has a specific path for a residence homestead acquired by will, transfer-on-death deed, or intestacy. An heir property owner not named on the deed or another recorded instrument must give the appraisal district an affidavit establishing an ownership interest, a copy of the prior owner's death certificate, and a copy of the property's most recent utility bill, as the Texas Comptroller of Public Accounts lists (Texas Comptroller of Public Accounts, accessed November 2026). Each other heir property owner occupying the home as a principal residence must also authorize the application.

Surviving spouse. A spouse age 55 or older may be eligible for the deceased spouse's age 65 or older exemption if the deceased died in a year in which they qualified and the spouse lives in the home as their primary residence, per the Texas Comptroller of Public Accounts (Texas Comptroller of Public Accounts, accessed November 2026). The appraisal district's chief appraiser decides.

The school district homestead exemption is $140,000 under Tax Code Section 11.13(b), and the additional exemption for owners age 65 or older or disabled is $60,000 under Section 11.13(c), as the Texas Comptroller of Public Accounts explains on its exemption page (Texas Comptroller of Public Accounts, accessed November 2026). Those are the state's figures, not an estimate of any one owner's bill.

One caution for heirs who plan to sell rather than move in: the exemption belongs to a property used as someone's principal residence, and whether it survives a given tax year is a question for the appraisal district.

Common Mistakes Heirs Make

After enough of these files, the same mistakes show up again. None requires a bad actor; they come from people trying to do the right thing quickly.

• Signing a contract before anyone has authority. A deed signed by someone who was never appointed is a cloud on title, and fixing it costs more than getting it right the first time.
• Assuming the surviving spouse owns everything. Texas intestacy divides. The statute decides, not the family's assumption.
• Agreeing to a family split verbally. A verbal agreement is not worth what it feels like when one heir changes their mind. Have an attorney document it.
• Treating an affidavit of heirship as a guarantee. It is evidence, and an undisclosed heir can surface later.
• Letting the property sit unattended. Ask the insurance agent what an empty house does to the policy.
• Ignoring the property tax bill until closing. Escrow can be handled at closing, but only if the bill is known before closing.

Each of these costs money. None costs as much as discovering the problem during the buyer's title search.

Frequently Asked Questions

Can I sell my parent's house without probate in Texas?

Sometimes — if the deed passed the house automatically (right of survivorship, transfer-on-death deed, or trust), or if the facts fit the small estate affidavit for a homestead-only estate under the state cap. Whether yours qualifies is decided by a probate attorney and, in practice, by the title company's willingness to insure.

Is an affidavit of heirship the same as probate?

No. Probate is a court proceeding that appoints a personal representative. An affidavit of heirship is a sworn statement recorded in the deed records that serves as prima facie evidence of the heirs. It can be faster and cheaper, and it can also be rejected by an underwriter who wants a court order.

How long does probate take in Texas?

It varies by county and by whether anyone contests the will. Nobody can promise a date. Your attorney can give a realistic estimate after reading the will and the deed.

Do heirs pay capital gains tax when they sell?

Under the IRS's published guidance, basis in inherited property is generally fair market value on the date of death, so gain is measured from that value (Internal Revenue Service, accessed November 2026). Whether it applies to you, and how to document it, is for a CPA.

Can heirs sell while probate is still open?

Often yes, once a court-appointed personal representative has authority to sign and the title company is willing to insure. Start the title conversation first; it tells you whether the sale can close on the buyer's timeline.

Selling an Inherited Home in Austin

Inherited houses around Austin tend to be older and usually need work — solvable, not a reason to take the first number offered. What matters more than condition is clean authority to sell, a title company that looked early, and a realistic price.

If you are the executor, administrator, or an heir in an inherited home in Austin, Round Rock, Cedar Park, Georgetown, or anywhere in the metro, the first step is a conversation about the house and the timeline the estate is working on. Bring what you have: the death certificate, the deed if you can find it, and any will. Missing pieces are normal too.

Book a free consultation →

More Reading

• Can You Sell a House With a Lien on It in Texas? — how liens show up in title and get paid at closing.
• What Is My House Worth in Austin in 2026? — how appraisals and market evidence set a realistic price.
• How to Read Your Texas Property Tax Bill — what the county statement is actually telling you.

About the Author

Sully Ruiz is a Texas-licensed real estate agent (TREC #0742907). Her sponsoring broker is Keller Williams Austin NW. She works with buyers and sellers in Austin and Central Texas, in English and Spanish — as their real estate agent, not their lender.

Book a free consultation →

Market data is for informational purposes only and is subject to change. Sources are believed to be reliable but are not guaranteed. Contact Sully Ruiz for a personalized market analysis.

Sources

• Texas Estates Code, Chapter 203 — Nonjudicial Evidence of Heirship — accessed November 2026.
• Texas Estates Code, Chapter 205 — Small Estate Affidavit — accessed November 2026.
• Texas Estates Code, Title 2 — Estates of Decedents — accessed November 2026.
• Internal Revenue Service — Gifts and inheritances — accessed November 2026.
• Texas Comptroller of Public Accounts — Property Tax Exemptions — accessed November 2026.
• Texas Comptroller of Public Accounts — Property Tax — accessed November 2026.

Not legal or tax advice. This article explains the general process in Texas and is not a substitute for a probate attorney, a title company's underwriter, or a CPA. Inherited property raises legal and tax questions that depend on the specific facts of an estate, and those answers belong to those professionals.