Inherited real property creates its own kind of dispute. Several people end up owning the same house or the same acreage without having chosen each other. Usually one of them is living there, another wants to sell, and the deed records don’t show who owns what because nothing was filed after the last two deaths.
The law in these cases is usually settled. The hard part is getting the family to agree on how to divide one shared asset, and the Estates Code supplies the procedures for when they can’t.
If the property is still in an administration, the sale has to go through the Estates Code. An ordinary listing and contract won’t be enough on their own.
Under Texas Estates Code Section 356.251, an application may be made to the court for an order of sale where the sale appears necessary or advisable to pay administration expenses, funeral expenses, expenses of last illness, allowances, and claims against the estate, or to dispose of an interest in estate real property where selling that interest is considered in the estate’s best interest.
Section 356.252 requires that application to be in writing and to describe the real estate or the interest being sold. It also has to come with an exhibit, verified by affidavit, that lays out the estate’s condition and the claims against it. The court process adds weeks. Harris County title companies are used to it, but a contract that doesn’t build in that time often falls apart before closing.
An independent executor has much more room to sell without a court order. In those cases the fight is usually over whether the price was fair and whether the buyer dealt at arm’s length. When an executor sells to a friend, a relative, or a company the executor controls, expect the other beneficiaries to challenge it on exactly those points.
Partition is the tool for an estate that’s ready to close when the beneficiaries can’t agree on who takes what.
Under Section 360.001, any time after the first anniversary of the date original letters testamentary or of administration were granted, an executor, administrator, heir, or devisee may file a written application requesting partition and distribution. The application has to name the decedent, identify each person entitled to a share and whether they are an adult or a minor, and state the reasons the estate should be partitioned.
Section 360.002 allows a partial distribution earlier, once the inventory, appraisement, and list of claims have been filed and approved. If that distribution goes to some heirs or devisees but not all of them, the court will require a refunding bond unless all interested parties file a written waiver.
When the estate is made up of more than money and debts owed to it, Section 360.151 directs the court to appoint three or more disinterested commissioners to make the partition. Section 360.153 requires them to make a fair, just, and impartial division. If the real estate can be divided without manifest injury to the distributees, they can give each distributee a share in each parcel, shares in one or more parcels, or whole parcels, with or without a share of other parcels added.
The commissioners’ report under Section 360.154 has to state what was divided and describe in particular what each distributee received and its value. If land was divided, the report must include a general plat showing the division lines and the number of acres in each share. Under Section 360.155, the court examines the report and hears objections and evidence. If the division was fairly made and no valid exception is taken, the court approves it and enters a decree vesting title. If not, the court can set the report aside and order a new partition.
A single-family house can’t be cut into thirds, and the Estates Code has a separate procedure for that situation.
Under Section 360.201, if the court concludes that all or part of an estate is not capable of a fair and equal partition, it must make a special written finding specifying the property incapable of division. Section 360.202 then requires the court to order that property sold, in the manner provided for sales of real estate to satisfy estate debts, and to distribute the proceeds to the people entitled to them.
Anyone thinking about bidding should know about Section 360.202(d). A distributee who buys the property at that sale only has to pay or secure the amount by which the bid exceeds that distributee’s own share. So an heir who wants to keep the family house doesn’t need to come up with the full purchase price in cash.
That rule changes a lot of these negotiations, and most of the people arguing over the house have never heard of it.
We see this fact pattern often in Harris County. The property has passed through two or three intestate deaths and nothing was ever filed. The family knows who everyone is, but the deed records don’t reflect any of it.
The problems surface at the worst possible time. A buyer’s title company won’t insure, and a lender won’t lend. An operator suspends royalty payments. One cousin signs a lease nobody else agreed to, or an outside buyer purchases a fractional interest from one heir and becomes a co-owner with the family.
Fixing it means establishing who the heirs are and getting that determination into the real property records of every county where the land sits. When the facts are disputed, that’s a contested heirship proceeding, and we handle those.
When the facts aren’t disputed and the family agrees, an affidavit of heirship is often the right instrument. That’s a much smaller job than hiring us, and we’ll tell you so on the first call.
While the dispute is pending, someone is usually living in the property and someone else is paying for it. Who gets to occupy it, whether rent is owed to the other co-owners, and how taxes, insurance, and repairs get credited are all live issues. We deal with them as the case goes along instead of leaving them for the end.
The representative’s duties here are specific. Under Section 351.101, an executor or administrator must take care of estate property as a prudent person would take care of their own, and must keep estate buildings in good repair except for extraordinary casualties, unless a court order directs otherwise. A representative who lets a house sit uninsured and deteriorating has a problem of their own, separate from whatever the family is fighting about.
Harris County has five statutory probate courts, created by Texas Government Code Section 25.1031(c).
Probate Courts 1 through 4 sit at the Harris County Civil Courthouse, 201 Caroline Street. Probate Court No. 5 is at 1115 Congress Street, 5th Floor.
Under Section 32.005, in a county with a statutory probate court, that court has exclusive jurisdiction of all probate proceedings, contested or uncontested.
When the land is in a different county from the one where the estate is pending, keep two things separate: the court where the case is heard, and the county records where the resulting order or instrument has to be filed. Getting the second one wrong leaves a defect in the title that someone will have to fix later.
We handle these matters in Harris, Fort Bend, Galveston, Montgomery, and Brazoria Counties. Estates with real property in more than one of these counties are routine for us.
The first conversation is a short call, and it’s free. Bring the cause number if there is one, the county where the property sits, the address or legal description, and a description of who else claims an interest.
Schedule a consultation or call (281) 219-9090.