Frequently Asked Questions

An affidavit of heirship is a sworn, non-judicial statement recorded in the county deed records under Estates Code Chapter 203 — no court is involved. Probate, by contrast, is a court process — independent administration, dependent administration, or muniment of title — that appoints someone to represent the estate or, in the case of muniment of title, admits a will as the link in the chain of title. The affidavit only fits intestate property with no will.

Sometimes. Practice varies by title company: some will insure a sale shortly after recording, relying on Title Examination Standard 11.70 if nothing contradicts the affidavit; others prefer to wait until the affidavit has been on record for the full five years so it carries the prima facie presumption under § 203.001. Ask the specific title company handling the closing before assuming either way.

The recording itself is a standard county filing fee, and attorney drafting of the affidavit is priced by the individual attorney. The larger figures belong to the court-based routes: an uncontested muniment-of-title filing commonly runs a flat $2,000 to $5,000 based on practice, while contested matters or a full Determination of Heirship run well past that, sometimes $10,000 or more.

Not by statute — there's no requirement that an attorney draft or file it. In practice, most families use one anyway, both because Chapter 203 sets required content rather than a fill-in-the-blank form and because getting the family history and witness statements right matters: the document becomes part of the permanent deed records.

A missing or unknown heir is one of the clearest signs the affidavit route is riskier than the judicial alternative. A Determination of Heirship under § 202.001 requires the court to appoint an attorney ad litem to represent that person's interests under § 202.009, typically adding $500 to $1,000 in fees paid by the estate — but it produces a binding court judgment rather than a private affidavit a missing heir could later contest.

It comes down to whether the decedent left a valid will. No will means the property is intestate, and the affidavit of heirship — or, if heirs are uncertain, a Determination of Heirship — is the relevant tool. A valid will with no unpaid debts other than real-property liens generally points toward muniment of title under § 257.001 instead, which tends to move faster.

Recording itself can happen quickly once the affidavit is drafted, witnessed, and notarized. The five-year mark under § 203.001 is when it gains the prima facie presumption, but many sales close well before that if the title company is willing to insure off a fresh recording. Compare that to muniment of title, where the court order typically takes about four to eight weeks and a sale can follow once the order and will are recorded — roughly a month and a half to two months in all.

Yes, in most cases. Under independent administration, the executor can list and close without going back to court for permission to sell (§ 402.052), as long as the power of sale is grounded in the will, the appointment order, or the need to pay estate debts. Under dependent administration, a sale is still possible while the case is open, but it requires a court-approved Order of Sale and, later, a Decree Confirming Sale before the transaction is final.

Yes, if the owner set it up before death. A Transfer on Death Deed recorded under Estates Code Chapter 114, or a Lady Bird deed, both move the house to the named beneficiary automatically at death, outside the probate process entirely. Muniment of title and a small estate affidavit are lighter-weight than full administration, but they're still probate-court filings, not a way to avoid the court altogether.

Texas generally requires a will to be admitted to probate within four years of the decedent's death (§ 256.003). Miss that window, and the usual result is that only muniment of title remains available — and even then, only if the person applying can show they weren't at fault for the delay.

It depends on the path. An independent executor with Letters Testamentary signs as executor. A dependent administrator signs only after the court's Decree Confirming Sale. Under muniment of title or a small estate affidavit, there's no executor at all — the heirs named in the court's order or the approved affidavit sign as direct owners of the property.

Yes, but Texas law requires an out-of-state executor to designate a Texas resident agent before letters can issue. Once that's done, an out-of-state executor has the same authority to sell as a Texas-resident executor under the same type of administration.

Texas's Medicaid Estate Recovery Program (MERP) can file a claim against the probate estate if the decedent was 55 or older and received long-term-care Medicaid benefits. A hardship waiver is available under 1 TAC § 373.209 when the home is worth less than $100,000 and the heir's income is under 300% of the federal poverty level. MERP does not pursue recovery when there's a surviving spouse, a child under 21, or a disabled child.

No. Texas levies no state inheritance tax and no state estate tax, as of 2026. The only tax exposure comes from the federal estate tax, and that applies only to estates worth more than the federal exemption amount.

Potentially, under the Uniform Partition of Heirs Property Act (Property Code Chapter 23A). A co-heir can file a partition action; the court first determines whether the property qualifies as heirs' property, then orders an independent appraisal of fair market value. The other co-heirs get a right of first refusal to buy out the petitioning heir's share at the appraised price. Only if no one buys them out does the court order a sale — and the Act steers that sale toward an open-market listing with a licensed broker at the appraised value rather than a distress auction — unless the court finds another sale method serves the co-owners better.

Neither deed has an official state form today. Texas never had a statutory form for the Lady Bird deed — it is a common-law instrument an attorney drafts in practice. Texas did have an optional statutory TODD form, but House Bill 2782 repealed it in 2019 (formerly Estates Code § 114.151); today a TODD has to meet § 114.055's requirements on its own, which in practice means most people have it attorney-prepared rather than rely on a downloaded PDF.

Both keep a house out of probate, but they work differently: a living trust requires retitling the property into the trust's name during life and ongoing trust administration, while a Lady Bird deed leaves the house titled in the owner's own name and simply designates who inherits it at death, with no trust document, trustee, or retitling step to maintain. Which fits better depends on the rest of the estate plan, the number of assets involved, and whether the owner wants ongoing trust management — that comparison is a question for a Texas estate-planning attorney rather than a one-size-fits-all answer.

Yes, both are revocable during the owner's life. A Lady Bird deed's enhanced powers include the right to revoke or change the beneficiary without the remainder beneficiary's consent. A TODD is revocable under § 114.052, and the owner can record a new TODD naming a different beneficiary at any time before death.

For a TODD, § 114.103 requires the beneficiary to survive the owner by at least 120 hours; if the beneficiary dies first, or within 120 hours after the owner, the transfer fails as to that beneficiary and the property passes as if no TODD had been recorded, absent a valid alternate beneficiary. Lady Bird deeds are typically drafted with alternate or contingent beneficiaries for the same reason.

Both move the house itself outside the probate estate at death, so the house does not need Letters Testamentary or a probate case to transfer. Neither deed avoids probate for the rest of the estate — other assets titled solely in the decedent's name, such as a car, a bank account with no beneficiary designation, or a second property with no deed of its own, may still need one of Texas's probate pathways to reach the heirs.

For a Lady Bird deed, generally yes in practice — once the death certificate is recorded, title companies are typically comfortable insuring a sale soon after. For a TODD, a sale attempted within the roughly two-year creditor claim window can be harder to insure unless the beneficiary can show the decedent's debts are resolved.

There is no statutory requirement to use a lawyer, but in practice most owners do. Neither deed has a current state-supplied form — the Lady Bird deed never had one, and Texas repealed the optional TODD form in 2019 — so both stand or fall on meeting Texas's legal requirements for the specific property and beneficiary designation, which is work most people hand to an attorney.

It depends on how the previous owner set things up. If they recorded a transfer-on-death deed or Lady Bird deed, the house already passed to you outside probate and you can sell as the owner of record. Otherwise, you'll generally need one of Texas's probate pathways — independent administration, dependent administration, muniment of title, or a small estate affidavit — to establish the legal authority to sell.

It varies by pathway. Letters Testamentary typically take several weeks to about two months in Harris County; independent administration then realistically closes in 2–3 months at the earliest, with 3–6 months a common span. Muniment of title is faster — an order in 4–8 weeks, with a sale possible in roughly 1.5–2 months total. A small estate affidavit runs about 1–3 months from death to an insurable transfer. Dependent administration is the slowest, often 6–9 months or more.

Yes, but an out-of-state executor has to designate a Texas resident agent before Letters Testamentary can issue. Once that's done and authority is established, an out-of-state heir or executor can sell the house the same way a Texas resident would.

Texas's Uniform Partition of Heirs' Property Act (Property Code Chapter 23A) gives the other co-heirs a structured path forward. One heir files a partition action; the court first determines the property qualifies as heirs' property, then orders an independent appraisal of fair market value. The remaining co-heirs get a right of first refusal to buy out the petitioner's share at the appraised price. If no one buys it out, the court orders a sale — normally an open-market listing with a licensed broker at the appraised value rather than a courthouse auction, unless the court finds another sale method serves the co-owners better.

Texas has no state inheritance or estate tax, so probate itself doesn't create a tax bill on the transfer. The ongoing question is usually the homestead exemption: an heir who moves into the house as a primary residence can claim the full 100% exemption even with only a fractional interest, by applying to the appraisal district with Form 50-114-A. Watch for one edge case — if the property carries an agricultural valuation, a change in use after the sale can trigger a rollback tax covering the prior three years.

It can, if the person who died was 55 or older and received long-term care Medicaid. Texas's Medicaid Estate Recovery Program can make a claim against the probate estate, though a hardship waiver is available under 1 TAC § 373.209 when the home is worth under $100,000 and the heir's income is below 300% of the federal poverty level. There's no recovery at all when a surviving spouse, a child under 21, or a disabled child survives the decedent.