I Never Probated the Will and I Need to Sell the House~2 min read

In order to sell a house, you must have clear title to that home. If the legal owner of the property died and left you that house in their will, but you never probated the will, the answer to whether you can now sell the home depends on many factors.

When someone dies with a will, Texas law requires that will to be submitted to probate within four years of the death. The probate court oversees the distribution of assets to be sure that, after all the decedent’s debts are paid, the assets are distributed according to the written wishes of the decedent.

Transfer of assets by the probate court is how someone gains legal title to property. But not all assets are required to pass through probate. For real estate, whether it needed to go through probate depends on how that real estate was owned when the decedent was living.

When the House Was Owned in Joint Tenancy with Right of Survivorship

If two or more people own a home in joint tenancy with the right of survivorship, when one dies, ownership of the home transfers to the survivors who legally own the home without it going through probate.

The same is true if a married couple owns the home and has an agreement that they own property with “survivorship community property” the surviving spouse owns the home without it going through probate.

When the Decedent Has a Transfer on Death Deed

Texas law has a provision for an owner of real estate to execute a “transfer on death” deed. This is just what it sounds like. The decedent signed, had notarized, and filed a transfer on death deed leaving the property to a beneficiary. Ownership transfers outside of probate and the new owner may sell the property anytime.

When The Decedent Owned the Real Estate as Their Sole Property

If the decedent owned the real estate as his or her sole property and made no provisions for transfer of ownership at death except by the terms of a will, and the will was never submitted to probate within the four years of death as required by law, there will be difficulties in selling the property.

If the will is not submitted on time, the general rule is that property will pass to heirs as though the decedent died without a will. As with many rules, there are exceptions. There are also ways that ownership can be proven even though the will was never probated. How to approach this is legally complex.

For more assistance with how to sell the house when you failed to probate the will, or for assistance with any estate planning issue, contact Daniel Abasolo at 940.387.0404.