In most Texas independent administrations, an independent executor may sell estate real property without first obtaining a court order. Many professionally drafted Texas wills also expressly grant the executor a power of sale, reinforcing that authority. A dependent administrator must obtain court approval before selling estate property, subject to very limited statutory exceptions.
Where the authority comes from
Independent administration. In most Texas independent administrations, an independent executor may sell estate real property without first obtaining a court order. Many professionally drafted Texas wills also expressly grant the executor a power of sale, reinforcing that authority. The legal basis in any given estate depends on the will, the nature of the administration and the Estates Code — which is worth confirming rather than assuming.
Dependent administration. A dependent administrator must obtain court approval before selling estate property, subject to very limited statutory exceptions. The process is deliberate: an application, notice, a hearing, an order, and in some cases court-appointed appraisers and a report of sale that must be confirmed.
What a title company will require
Legal authority is one thing; closing the sale is another. Expect the title company to ask for:
- Recently issued certified Letters Testamentary, often issued within the last 60 to 90 days. The Letters themselves do not legally expire, and an executor’s authority generally continues until the estate is closed or the executor is removed — but title companies frequently want a current certified copy anyway, and those are simple to obtain from the clerk.
- A certified copy of the will and the order admitting it, so the examiner can read the power of sale.
- The order appointing the executor.
- Some title companies request evidence that the inventory — or an affidavit in lieu of inventory — has been filed. Not every title company asks.
- Evidence that any homestead rights have been resolved or do not prevent the transfer.
Different underwriters ask for different things. Getting the title company's requirements in writing early is the single best way to keep a probate sale from falling apart a week before closing.
Homestead and the surviving spouse
This is where sales most often stall. A surviving spouse — and in some cases a minor child — may have constitutional homestead occupancy rights that must be addressed before a sale can close. Title companies typically require evidence that those rights have been resolved, waived, or otherwise do not prevent the transfer.
How the issue is handled depends on the circumstances of the sale. A sale by the executor to pay debts, a sale by agreement, a sale after the homestead right is waived, and a sale in which the surviving spouse joins in the conveyance do not all produce the same result. This is worth sorting out before the property is listed rather than a week before closing.
When the property has already passed to heirs
Title to real property vests immediately in the heirs at the moment of death, subject to estate administration. An heirship judgment establishes who those heirs are; it does not create their ownership. If there is no administration open, all of the heirs must sign the deed, and one heir who will not sign — or who cannot be found — stops the sale entirely.
Opening an administration is often the cleaner solution, because the administrator may have authority — with the appropriate statutory powers and procedures — to sell estate property when necessary. That authority does not let an administrator disregard the heirs’ vested ownership interests. Where cooperation has broken down entirely, a partition suit may be the only route.
The executor's obligations in a sale
An executor sells on behalf of the beneficiaries and can be held accountable for how it is done. Sell to yourself or a relative below market, and expect the transaction to be challenged. Fair market value, an arm's-length buyer, documented marketing, and transparency with the beneficiaries are the protections. If the executor or a related party is purchasing estate property, the executor should consult counsel regarding fiduciary duties and consider obtaining written beneficiary consent or court approval.
Common questions
Can the house be sold before the hearing?
Do all beneficiaries have to agree to the sale?
What happens to the mortgage during probate?
This page is general information about Texas law, not legal advice, and reading it does not create an attorney-client relationship. Every estate is different. For advice about your situation, call 713-588-5914 for a free consultation.
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