Of all the issues our clients face, inheriting a house without a will is one of the hardest. We’ve covered this before here and there, but we wanted to return to this topic one more time to make it as crystal clear as we possibly can. If you’re selling your house without a will, consider this is your survival guide.
A person’s property is called their estate. When they die without a will, this estate is distributed according to rules determined by the individual’s home state. These are called rules of intestacy. Intestacy is just what you call it when someone dies without a will. In Texas, the rules of intestacy are determined by the Texas Probate Code. This is the order in which an estate is distributed according to those rules:
- If a single person dies with no children, it passes first to his parents.
- If there are any siblings or nieces or nephews, then half would go to a surviving parent and the remaining half would be divided among the siblings and nephews.
- If you have no surviving parents, all of your property is given to your siblings.
- If you’re unfortunate enough to die without any surviving descendants, parents, siblings, or nieces of nephews, then the estate is divided into two halves. One half is distributed to relatives on the mother’s side of the family and the other half goes to the father’s side.
If the deceased had a spouse, then their assets will be determined to be either Separate Property or Community Property:
Separate Property is any property owned by the deceased prior to being married. It also includes gifts the deceased received during the marriage, or acquired through inheritance. This is the order in which separate property is divided:
- If you are married and have no children, your spouse is entitled to the entirety of the separate personal property. But if you are survived by your parents, the surviving spouse would only receive half of the separate real property with the other half passing to the parents.
- If you leave behind both a spouse and children, your spouse is entitled to only one third of your separate personal property, and are only entitled to a life estate. A life estate being the ownership of land for the duration of a person’s life. in one-third of your separate real property.
Community property is simply property that was acquired during the course of the marriage and is therefore shared. Here’s how it breaks down:
- Your surviving spouse will inherit all your community property, as long as you do not have any children with any other partners.
- If you do have any children outside of your current marriage, your half interest in the community estate will be given to your children, and your spouse will be entitled to half.
Now that we’ve explained the details of probate and made clear who is entitled to what, let us explain how to navigate the bureacracy that comes with selling your house without a will.
1. Prepare the Affidavit of Heirship
An affidavit of heirship is just a testament that someone is the rightful heir to a property made by a close associate of the deceased. It contains one’s family history, genealogy, marital status and the identity of heirs of the deceased. Title Companies will usually require an immediate family member and two disinterested parties/ witnesses sign and notarize the affidavit.
2. Preparation of the Deed
The second step after the affidavit of heirship is complete is to prepare the deed, transferring title to the proper heirs. Once the deed is prepared, both the deed and the affidavit of heirship are filed in the county records, and you are free to sell your home.
We hope this has been informative. This process may sound overwhelming, but it doesn’t have to be. At Big State Home Buyers, our in-house Title experts work directly with the Title Companies and interface with family members to make the selling process as simple as possible, and we prepare these documents at no cost to you. So if you need to sell your house without a will, you know who to call.