To transfer a house title after death in Texas, you use one of four routes depending on what the owner set up before dying: probate the will (or open an administration if there was none), file a small estate affidavit, record an affidavit of heirship, or record the death certificate against a transfer on death deed the owner signed while alive. A community property survivorship agreement can also carry the house straight to a surviving spouse. Which path fits depends on whether there is a will, whether the heirs agree, whether the estate has significant debts, and whether the owner planned ahead.
The Four-Year Deadline That Shapes Everything
Texas gives you four years from the date of death to probate a will. Under the Estates Code, a will generally cannot be admitted to probate after the fourth anniversary of death unless the applicant proves they were not at fault for the delay.1State of Texas. Texas Estates Code Chapter 256 – Probate of Wills Generally Even when a late will is admitted, the court cannot issue letters testamentary if the application came in after the four-year mark.
That matters because letters testamentary are what give an executor legal authority to sign the house over. Without them, the family has to fall back on a determination of heirship proceeding, which involves a court hearing and an attorney ad litem appointed to represent unknown heirs.2State of Texas. Texas Estates Code Chapter 202 – Proceedings to Declare Heirship If the property has sat untouched past the four-year line, a good-faith purchaser who buys from the heirs may even have a claim that overrides the will’s beneficiaries. File the application promptly, even if the estate looks simple and the family agrees.
Probate With a Will
Probate is the default when the owner left a will or when no streamlined method fits. Someone files an application with the probate court to admit the will. The court reviews the will, appoints the executor named in it, and issues letters testamentary. Those letters are what the title company, county clerk, and mortgage servicer want to see before recognizing the executor’s authority to transfer the house.3Texas Law Help. Probate Court Basics
The executor then pays debts, files a sworn inventory (or an affidavit in lieu of inventory) of estate assets, and distributes the property to the beneficiaries the will names. Depending on complications, that can wrap in a few months or run past a year.
Independent Administration
Most Texas probate cases run as independent administrations. Once letters issue, the executor can sell property, pay debts, and deed the house to a beneficiary without asking the court’s permission at each step. This keeps fees down and the timeline short.
A will can grant independent administration directly. If it doesn’t, all of the estate’s beneficiaries can agree to request it from the court.4Texas Law Help. Estate Administration in Texas That agreement has to be unanimous. One holdout can push the case into dependent administration.
Dependent Administration
Dependent administration puts the court in the middle of every significant action. Selling the house, paying a large bill, distributing an asset — each requires a motion, a hearing, and an order. The oversight is protective when heirs are in conflict or the debts are messy, but the added attorney time makes it noticeably more expensive and slower.
When There Is No Will
If the owner died without a will, two streamlined tools may still move the house without a full administration. Both have narrow eligibility rules, and choosing wrong wastes time.
Small Estate Affidavit
The Small Estate Affidavit is the fastest and cheapest option, but only a small slice of estates qualify. All of these have to be true: the person died without a will; non-exempt assets total less than $75,000 (excluding the homestead and exempt personal property); assets exceed debts; and the only real property is the homestead.5Texas Law Help. Small Estate Affidavits A rental house or investment land disqualifies the estate immediately.
All heirs must sign the affidavit, along with two disinterested witnesses. It lists assets, debts, and each heir’s share under Texas intestacy law. Once a judge approves it, the affidavit authorizes transfer of the homestead and distribution of the other assets.6State of Texas. Texas Estates Code Chapter 205 – Small Estate Affidavit If any heir refuses to sign, or a creditor dispute surfaces, you’re back to formal probate.
Affidavit of Heirship
An Affidavit of Heirship is a sworn statement identifying the heirs and the family history — marriages, children, the absence of a will. It’s completed by a disinterested witness who knew the family but doesn’t stand to inherit, then notarized and recorded in the deed records of the county where the property sits.7State of Texas. Texas Estates Code Section 203.002 – Nonjudicial Evidence of Heirship
An affidavit doesn’t legally transfer title the way a court order does; it serves as evidence of who the heirs are, which in practice lets them deal with the property. Title companies typically want to see the affidavit on file for at least five years before they’ll rely on it to insure a sale, so families planning a quick sale may run into resistance. For disputed family relationships, significant debts, or multiple properties across counties, formal probate or a determination of heirship is the safer route.
Transfer on Death Deed
If the owner recorded a Transfer on Death Deed (TODD) before dying, the house skips probate entirely. The beneficiary named on the deed takes title by recording a death certificate with the county clerk. No court proceeding, no letters, no inventory.
The TODD only works if the owner set it up correctly during life. It must contain the essential elements of a recordable deed, state that the transfer takes effect at the owner’s death, and be recorded in the county clerk’s office before the owner dies.8State of Texas. Texas Estates Code Chapter 114 – Transfer on Death Deed A TODD found unrecorded in a drawer has no legal effect.
One point worth knowing if the family is sorting through conflicting documents: a will cannot override a TODD. If the owner signed a TODD naming a sister and later wrote a will leaving the house to a brother, the sister still gets the house. The TODD operates outside probate, and the will has no authority over it.
What the Surviving Spouse Automatically Gets
Texas is a community property state. Assets acquired during marriage generally belong equally to both spouses, so when one spouse dies, only that spouse’s half of the community property passes through the estate. The survivor already owns the other half. What happens to the deceased spouse’s half depends on the will, any survivorship agreement, and the family structure.
Community Property Survivorship Agreements
Married couples can bypass most of this by signing a community property survivorship agreement during their lifetimes. Under Texas law, a written agreement signed by both spouses that includes language such as “with right of survivorship” or “will become the property of the survivor” passes the property directly to the surviving spouse at death, outside probate.9State of Texas. Texas Estates Code Chapter 112 – Community Property With Right of Survivorship Titling an account or property as “joint” is not enough on its own.
Intestacy When There Is No Agreement or Will
If the deceased spouse had no will and all surviving children are also children of the surviving spouse, the surviving spouse inherits the deceased’s entire share of the community estate and ends up owning 100% of the house. But if the deceased had any children from a prior relationship, those children inherit the deceased spouse’s half of the community property, leaving the surviving spouse holding only their own 50%.10State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution That creates co-ownership between the surviving spouse and stepchildren, which becomes awkward the moment anyone wants to sell or refinance.
Separate property — anything owned before the marriage or received during it as a gift or inheritance — runs on different intestacy rules. If the deceased owned the house as separate property and had children, the surviving spouse receives a life estate in one-third of the land, while the children inherit the rest outright. The surviving spouse can live in and use the property but cannot sell it without the children’s agreement. When the surviving spouse dies, the full property passes to the children.
The Mortgage on an Inherited Home
Inheriting a house that still has a mortgage does not mean the lender can call the loan due. The Garn-St. Germain Act prohibits lenders from triggering a due-on-sale clause when residential property with fewer than five units transfers to a relative after the borrower’s death, and the same protection covers transfers to a surviving joint tenant, spouse, or child.11Office of the Law Revision Counsel. 12 U.S. Code 1701j-3 – Preemption of Due-on-Sale Prohibitions Heirs who want to keep the house can keep making the existing payments.
Federal regulations also require mortgage servicers to identify and communicate with potential successors in interest promptly after learning of a borrower’s death. Once you send documentation of your identity and ownership interest, the servicer must recognize you as a successor in interest and give you access to the same loss mitigation options the original borrower had.12Consumer Financial Protection Bureau. 12 CFR Part 1024 Regulation X – Section 1024.38 If the loan is already in default, you may be able to apply for a modification to bring it current. Get the death certificate and proof of your heirship or beneficiary status to the servicer as early as possible. Letting the loan sit in default while probate drags on is how families lose inherited homes to foreclosure.
Taxes on the Inherited House
Texas has no state estate tax and no inheritance tax, so tax questions on an inherited home are federal only. The federal estate tax exemption for 2026 is $15 million per individual ($30 million for a married couple). The One Big Beautiful Bill Act made this higher exemption permanent, with annual inflation adjustments. Estates under the threshold owe no federal estate tax.
The bigger benefit for most heirs is the step-up in basis. When you inherit property, your cost basis for capital gains purposes is the fair market value on the date of death, not what the original owner paid.13Office of the Law Revision Counsel. 26 U.S. Code 1014 – Basis of Property Acquired From a Decedent If a parent bought a house in 1985 for $60,000 and it was worth $350,000 at death, your basis is $350,000. Sell it soon after for $355,000 and you owe capital gains tax on $5,000, not on the appreciation that built up over the parent’s lifetime. The step-up applies whether the house came through probate, a TODD, an affidavit, or a survivorship agreement. If you plan to sell, an appraisal near the date of death locks in the stepped-up value if the IRS ever questions it.
Medicaid Estate Recovery
If the deceased received Medicaid-funded long-term care services after age 55, the Texas Medicaid Estate Recovery Program (MERP) may file a claim against the estate to recover those costs. MERP does not place liens on property; it files a claim through probate.14Texas Health and Human Services. Medicaid Estate Recovery Program FAQs
Recovery is blocked when the home is occupied by a surviving spouse, a child under 21, or a child who is blind or has a disability.15U.S. Department of Health and Human Services – ASPE. Medicaid Estate Recovery MERP also offers hardship waivers, though Texas sets the “modest value” threshold at less than $10,000 in property value, which excludes most homes in practice. Heirs do not have to sell the house to satisfy a MERP claim; they can pay it from other funds and keep the property. When MERP sends a Notice of Intent to File a Claim, it includes information about applying for a hardship waiver. Responding promptly preserves options.
What This Costs
- Probate court filing fees in Texas run approximately $470 as of January 2026, covering the original filing, citation issuance, sheriff’s posting, and the judge’s order. Extra certified copies of letters testamentary cost a few dollars each.16Texas Office of Court Administration. Probate Fees Effective January 1, 2026
- Attorney fees vary widely. Independent administrations with no disputes cost significantly less than dependent administrations or contested cases.
- Deed recording fees are set at the county level and generally run $25 to $50 for the first page, with additional charges per page.
- Notary fees in Texas are capped at modest amounts for standard acknowledgments, typically under $10 per signature.
- An appraisal for the estate inventory or to document the stepped-up basis generally runs $300 to $500 for a single-family home.
The non-probate routes — TODDs, affidavits of heirship, and small estate affidavits — avoid most court costs, which is a large part of their appeal. Recording fees and notary charges still apply, and many families still hire an attorney to prepare the documents. A mistake on a recorded deed can cloud the title for years.