A Practical Guide to Inherited Real Estate, Title Problems, and Legal Risk

When someone dies owning real property in Texas, the question often comes quickly:

“Can we just sell the house now?”

Sometimes the family agrees. Sometimes there’s no will. Sometimes one heir wants cash immediately. And sometimes a buyer is already lined up.

But here’s the reality:

In most cases, heirs cannot legally convey marketable title before probate is opened.

Let’s break down why — and what Texas law actually says.

1. What Happens to Property When Someone Dies in Texas?

Under Texas law, title to property passes immediately upon death — but subject to administration.

Texas Estates Code § 101.001(a) provides:

“If a person dies leaving a lawful will, all of the person’s estate that is devised by the will vests immediately in the devisees.”
Texas Estates Code § 101.001

If the person dies intestate (without a will), § 101.001(b) provides that the estate vests immediately in the heirs at law.

Sounds simple, right?

Not quite.

Because § 101.051 clarifies that this vesting is subject to administration. The estate’s debts must be addressed first.

So yes — heirs have a vested interest.
But no — that does not automatically mean they can safely sell the property.

2. Why Buyers (and Title Companies) Usually Require Probate

Even though heirs technically receive vested title, title companies require proof of:

• Who the legal heirs are
• Whether debts exist
• Whether an executor or administrator has authority
• Whether estate administration is pending or necessary

Without probate, you often have:

• No Letters Testamentary
• No Letters of Administration
• No judicial determination of heirship
• No recorded muniment of title

That creates a clouded title issue — which you’ve written about separately.

Most title companies will not insure a sale without probate unless:

• There are clear heirship affidavits, AND
• Enough time has passed, AND
• There are no competing claims

And even then, it’s risky.

3. Independent Administration vs. Dependent Administration

If the decedent left a will naming an executor, Texas strongly favors independent administration.

Under Texas Estates Code § 401.001:

An independent executor may administer the estate without court supervision after qualification.

This means:

• The executor can sell property
• No court approval is required (unless the will restricts it)
• Transactions move much faster

But until that executor qualifies and receives Letters Testamentary, no one has legal authority to convey on behalf of the estate.

4. What If There Is No Will?

If there is no will, someone must apply for administration under Texas Estates Code Chapter 301.

Until:

• Heirship is determined, and
• An administrator is appointed

There is no legally authorized representative of the estate.

If heirs attempt to sell anyway:

• The deed may be defective
• A missing heir could later sue
• Creditors could challenge the transaction
• Title insurance may be denied

That is not a small problem.

5. What About “Muniment of Title” Probate?

Texas has a streamlined procedure called probate as a muniment of title under Texas Estates Code § 257.001.

This is available when:

• There are no unpaid debts (other than secured real estate debt), and
• There is a valid will.

In those cases, the will is admitted to probate solely to establish title — no executor administration required.

For real estate transfers, this is often the cleanest and cheapest route.

6. Risks of Selling Before Probate

Here are the real-world risks:

1️⃣ Unknown Heirs

A previously unknown child or heir surfaces.

2️⃣ Estate Debts

Under Texas Estates Code § 101.051, property remains subject to estate debts.

3️⃣ Medicaid Estate Recovery (MERP)

The State of Texas can assert claims against the estate.

4️⃣ Title Insurance Refusal

Without probate, buyers may walk away.

5️⃣ Litigation

Family disputes often arise after money changes hands.

And you know from practice — real estate disputes can metastasize quickly.

7. When Can Property Be Sold Before Probate?

There are narrow circumstances where heirs can convey:

• All heirs are known and in agreement
• No administration is pending or necessary
• Debts are paid
• Heirship affidavits are properly recorded
• A buyer accepts the risk

But this is not typical in contested, high-value, or creditor-sensitive estates.

8. The Practical Answer

Technically?
Yes, heirs receive vested title immediately.

Practically?
Most real property sales in Texas require probate first.

Probate is not just a formality. It:

• Establishes authority
• Clears title
• Protects buyers
• Cuts off disputes
• Reduces litigation risk

And in many cases — especially uncontested estates — it is faster and cheaper than people expect.

Final Thoughts

If you are an heir and want to sell inherited property in Texas:

Do not assume you can simply sign a deed and close.

Before listing the property:

• Determine whether probate is required
• Confirm debts
• Identify all heirs
• Consult with a probate attorney

Because fixing a defective conveyance later is far more expensive than doing probate correctly the first time.

If you are dealing with inherited property, probate questions, or title complications in Texas, consult experienced counsel to evaluate the safest path forward.

At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.