Selling a Home After a Spouse Dies Without a Will

If you die without a will in Texas, you still have a will. It’s just one the state wrote for you, and it may not leave your home to the people you’d expect.

A friend of mine died unexpectedly in his forties. He and his wife owned their home together, he had grown children from before the marriage, and he had no will. None of his children had ever lived in that house.

Most people would assume the house simply belongs to his wife now. In Texas, that isn’t how it works. If you are married and own a home, it is worth understanding what happens to it if one of you dies without a will, because the answer can change who has to sign when the house is sold.

Who owns the house now

When someone dies without a will, the Texas Estates Code decides who inherits. For a married couple, the first question is whether the home was community property (bought during the marriage) or separate property (owned before the marriage, or inherited or gifted to one spouse).

• Community property, and all of the deceased’s children are also the surviving spouse’s children (or there are no children): the surviving spouse ends up owning the whole house.
• Community property, and the deceased had children from outside the marriage: the surviving spouse keeps their own half. The deceased’s half goes to all of the deceased’s children, shared equally.
• Separate property of the deceased: the surviving spouse gets a right to use one-third of the property for life. The deceased’s children inherit the rest.

That second situation is my friend’s. His wife still owns her half, but his half now belongs to his adult children. It doesn’t matter that they never lived there or that they are grown.

Why everyone on the title has to sign

A buyer’s title company will only insure the sale if every owner signs the deed. When the deceased’s children inherit part of the house, they are owners. So if the surviving spouse decides to sell, those children have to agree and sign too.

The surviving spouse is not without protection. The Texas Constitution gives a surviving spouse the right to keep living in the homestead for the rest of their life, no matter who inherited it. The children can’t force a sale while that right is in place.

That protection cuts both ways, though. The spouse can stay, but can’t sell on their own. In practice, the spouse and the children usually have to work out an agreement, such as selling together and splitting the proceeds by ownership, or one side buying out the other.

How to check your own situation

You don’t have to take anyone’s word for this, including mine. You can look it up yourself:

1. Pull your deed. Your county clerk’s office keeps recorded deeds, and most North Texas counties let you search them online by name. Look at how the owners are listed and whether the deed or a separate agreement mentions a “right of survivorship.”
2. Confirm the owner of record. Your county appraisal district’s website shows who is listed as the owner of the property.
3. Read the rules in plain chart form. Several Texas county probate courts, including Dallas County’s, publish a free descent and distribution chart that shows who inherits in each situation.
4. Go to the source. The rules themselves are in Chapter 201 of the Texas Estates Code, posted on the Texas Legislature’s website.

What the title company will need

Before a house like this can close, the title company has to confirm exactly who the heirs are. Expect them to ask for a death certificate at a minimum.

When there’s no will, the title company’s attorney can usually prepare an affidavit of heirship. It’s a sworn statement, signed by people who knew the deceased but don’t inherit anything, that lists the deceased’s marriages and children. Once it’s recorded, it helps establish who owns the house now. Starting this early, before the house goes on the market, saves a lot of stress later.

Some situations do call for your own attorney: heirs who don’t agree on selling, an heir who can’t be found, debts or liens against the estate, or a will that turns up later. In those cases, talk to a probate attorney before you list.

If there’s a mortgage

A mortgage doesn’t go away when an owner dies, but it usually doesn’t force a quick sale either.

• The lender can’t call the loan due just because of the death. Federal law protects a relative who inherits the home from having the whole balance demanded at once.
• Inheriting part of the house doesn’t make you responsible for the loan. Heirs who never signed the loan aren’t personally on the hook for it. But the payments still have to be made, or the lender can foreclose on the house.
• At closing, the mortgage is paid off first. Whatever is left is split according to who owns what.
• Keep track of who’s paying. If one owner has been making the payments alone, they may want credit for that when the house sells. That’s a good question for an attorney.
• Owing more than the house will sell for is a short sale, and that needs every owner’s signature plus the lender’s approval.
• Reverse mortgages work differently. They generally come due when the last borrower dies, so call the loan servicer right away.

To get the loan servicer to talk with you, expect to send a death certificate and proof of who inherited, such as the recorded affidavit of heirship.

Plan ahead while you can

All of this is easier to fix before anyone dies than after. If you’re married and either of you has children from a prior relationship, take a few minutes to pull your deed and see how you hold title. A simple will, or a survivorship agreement between spouses, can decide ahead of time who ends up with the house, so the person you leave behind isn’t caught off guard.

If you have questions about selling a home after the loss of a co-owner, I’m happy to help.

I’m not an attorney, and this isn’t legal advice. Every family’s situation is different, so an estate planning or probate attorney is the right person to review yours.

Sources

• Texas Estates Code Chapter 201, descent and distribution