Texas Guides / Inheritance
Heirs' property in Texas: when the house is still in Dad's name
Quick answer
Heirs' property is a house or land that is still titled in the name of someone who has died. The heirs own it together, each with a share, but nothing in the county records shows that. That makes it hard to sell, borrow against or get disaster aid, and the family can lose it over unpaid taxes. The main ways to clear title are an affidavit of heirship, a small estate affidavit, probating a will as a muniment of title, or a court heirship determination.
Who this guide is for
- Your father, mother, grandparent or spouse died and the Texas house or land is still in their name.
- You have inherited land with no paperwork in your name and don't know where to start.
- Your family comes from Mexico and assumed the deed passed to the children automatically.
Not for you if…
- The property is outside Texas: inheritance rules differ by state and by country.
- You've already been served with a lawsuit or court papers: talk to a lawyer or free legal aid today.
Across Texas, many families live in a house or hold land that is still in the name of a parent or grandparent who has died. That's called heirs' property. It isn't illegal, but it leaves the family exposed. This guide explains what it is, why it happens and how to get the land into your name.
First: did your parent leave a transfer on death deed?
Before you think about probate, check whether the owner signed a transfer on death deed (TODD). It passes the house or land straight to the named beneficiary, without probate (Texas Estates Code §114.051).
- It only works if it was recorded before the death, in the county where the property is (§114.055). An unrecorded TODD in a drawer does nothing.
- The beneficiary must outlive the owner by at least 120 hours (§114.103).
- How to check: search the county clerk's records under your parent's name.
- If there is one: in practice, TexasLawHelp says to complete an affidavit of death, sign it before a notary and record it in the county with the death certificate. Its forms come in Spanish: affidavit of death (Spanish PDF) and beneficiary instructions (Spanish PDF).
No recorded TODD? Keep reading: the four paths below are for you.
What is heirs' property?
It's a house or land where the owner named on the deed has died and nobody updated the paperwork. The heirs own it by law, but together. Each holds an undivided interest: not a specific room or strip of land, but a percentage of the whole.
Say a widowed father dies without a will and leaves three children. Each child owns one-third of the entire property. If one of those children later dies, that third is split again among their own heirs. Every generation adds owners and makes agreement harder.
How it happens: "the house is still in Dad's name"
It almost always comes down to one of these:
- No will. A University of Texas School of Law survey of 1,200 homeowners in colonias and similar subdivisions in Central and South Texas found that 89% had no will (per the official bill analysis for SB 1943).
- No probate. Even with a will, nothing changes in the county records until a court admits it.
- Handshake deals. "Your brother keeps the house and you get the lot." If nothing is recorded, the law doesn't see it.
- Unrecorded papers. A receipt or contract that never made it to the county clerk.
- Assumptions from Mexico. Many families believe the escritura passes to the children on its own. In Texas there's no notario who handles that. If your family is from Mexico, also read In Texas, a notary is not a lawyer and Mexico vs. Texas land.
Why it's risky
As long as title stays in the name of the person who died, the family faces these problems:
| Problem | What happens |
|---|---|
| Can't sell | A title company will almost always require clear title and the signatures of every heir. |
| Can't borrow | Lenders won't lend against a house that isn't in your name, and repair loans are hard to get. |
| Missing homestead exemption | If no one applies, the family pays more in taxes. Heirs can apply (see the heir homestead exemption guide). |
| Disaster aid | FEMA asks for proof of ownership. There's an option for heirs, but it takes more work. |
| Tax foreclosure | If taxes go unpaid, the county can sell the property. For a homestead, the law gives two years to redeem it by paying a 25% or 50% premium (Tax Code §34.21). |
| Forced partition | Any co-owner can ask a court to divide or sell the land (Property Code §23.001). |
| Buyers of "one share" | An outsider buys a single heir's share, then asks the court to sell the whole property. |
The numbers in North Texas. A 2024 study by Heather K. Way (UT Law) and Noah J. Durst, published by Asset Funders Network, identified more than 10,000 heirs' property homes in Dallas and Tarrant counties, worth at least $2.2 billion. Over half (52%) of the single-family properties sold through tax foreclosure in those counties were heirs' property. In Tarrant County, heirs' homes were 10 times more likely to be two or more years delinquent on taxes (18% vs. 1.8%), and 68% of the likely owner-occupied ones lacked the full homestead exemption.
FEMA. For disasters declared on or after August 13, 2021, FEMA may accept, as a last resort, a written self-certification if you inherited the home and have no other proof of ownership. It must include the address, how long you lived there before the disaster, an heirship statement, your name and signature, and a copy of the death certificate (DisasterAssistance.gov).
No will: who inherits in Texas?
When someone dies without a will, Texas law decides who inherits (Estates Code Chapter 201). The first question is whether the property was community or separate:
- Community property: nearly everything acquired during the marriage.
- Separate property: what a spouse owned before marriage, or received by inheritance or gift.
| Situation (no will) | Who inherits |
|---|---|
| No surviving spouse | The children (and grandchildren in place of a child who died). With no children, the parents and siblings. |
| Married, community property, all children are the couple's | Everything goes to the surviving spouse. |
| Married, community property, children from another relationship | The surviving spouse keeps their own half. The decedent's half goes to the decedent's children. |
| Married, separate land, with children | The children inherit the land. The spouse gets only a life estate in one-third. |
| Married, separate land, no children | The spouse gets half. The other half goes to parents and siblings; if there are none, all to the spouse. |
How to put the land in your name: the four main paths
There are four main ways to clear title. This is an overview; each has its own guide or is best explained by a lawyer.
| Path | When it's used | Key points |
|---|---|---|
| Affidavit of heirship | No will, and the family agrees. | Signed before a notary and recorded with the county. After five years of record, it's prima facie evidence in court. Some title companies require more. See the affidavit of heirship guide. |
| Small estate affidavit | No will, assets up to $75,000 not counting the homestead, and the homestead is the only real property. | Sworn by two disinterested witnesses and the heirs, and approved by a judge. It can't transfer other land. |
| Will probated as a muniment of title | There's a will and no unpaid debts other than a mortgage or debts secured by the land. | Generally must be filed within four years of death. It's a short form of probate. |
| Heirship determination | No will, and the situation is complicated, or the title company requires it. | A judge declares who the heirs are. It can be filed any time after death. |
If the family can't agree and someone asks a court to divide or sell the land, Texas has adopted the Uniform Partition of Heirs' Property Act (Property Code Chapter 23A). It requires the court to set the property's value and gives the other heirs a chance to buy out the co-owner who asked for the sale.
What to do first
- Gather the papers: the death certificate, the old deed (or look it up with the county clerk), any will, and the property tax statements.
- Draw the family tree: every spouse, child (from every relationship) and grandchild of the person who died, with dates and addresses.
- Check the taxes: look up the property on your county appraisal district and tax office websites. If taxes are past due, deal with that first.
- Apply for the homestead exemption if you live there. You don't need the deed in your name first.
- Talk to a lawyer or free legal aid before you sign or pay for any document.
Costs and timing
| Path | Court involved? | Timing set by law | Cost |
|---|---|---|---|
| Affidavit of heirship | No, it's recorded with the county | Becomes evidence in court after 5 years of record | Varies |
| Small estate affidavit | Yes, a judge approves it | At least 30 days after death; assets up to $75,000 not counting the homestead | Varies |
| Will probated as a muniment of title | Yes | Generally within 4 years of death | Varies |
| Heirship determination | Yes | Any time after death | Varies |
Costs depend on the county and on whether you hire a lawyer. Confirm filing fees with the county clerk. If you qualify by income, legal help may be free.
The law and official forms
The law
- Texas Estates Code §201.001: if someone dies without a will and without a spouse, the property passes to their children (and grandchildren); if none, to parents and siblings.
- Texas Estates Code §201.002: separate property with no will: if there are children, the spouse gets a life estate in one-third of the land and the children get the rest.
- Texas Estates Code §201.003: community property with no will: it all goes to the spouse only if every child is also the spouse's child; otherwise the decedent's half goes to the decedent's children.
- Texas Family Code §3.001 and §3.003: property owned before marriage or received by gift or inheritance is separate; everything else is presumed community.
- Texas Estates Code §203.001: a sworn statement of family history recorded for five years or more in the county deed records is prima facie evidence of who the heirs are.
- Texas Estates Code §205.001 and §205.006: the small estate affidavit: no will, assets up to $75,000 excluding the homestead and exempt property, and it can transfer only the homestead, not other land.
- Texas Estates Code §202.0025: a proceeding to declare heirship may be brought at any time after death.
- Texas Estates Code §256.003 and §257.001: a will generally must be offered within four years of death; the court may admit it as a muniment of title if the estate owes no unpaid debts other than debts secured by real estate liens.
- Texas Property Code §23.001 and Chapter 23A: any co-owner can force a partition; if the land is heirs' property, the Uniform Partition of Heirs' Property Act lets the other heirs buy out the co-owner who asked for a sale.
- Texas Tax Code §34.21: if a homestead is sold at a tax sale, the owner may redeem it within two years by repaying the buyer plus a 25% (first year) or 50% (second year) premium.
- Texas Tax Code §11.43(o): an heir can apply for the homestead exemption with an affidavit, the death certificate and a recent utility bill, without a deed recorded in their name.
Official forms
- Residence Homestead Exemption Application, Form 50-114, Texas Comptroller: includes the heir property checkbox.
- Form 50-114-S (Spanish), Texas Comptroller: official Spanish version.
- Texas State Law Library guide: informal methods of settling an estate: links to the statutes and to sample forms.
- FEMA: self-certification of ownership for inherited homes: what the statement must include if you have no other proof.
When to call a lawyer
- A sibling or relative disagrees about who inherits or about selling.
- Someone offers to buy “your share” of the family land.
- You were served with a partition suit or a delinquent tax suit.
- There's a will and more than four years have passed since the death.
- The property has been in a deceased person's name for two or more generations.
- One of the heirs lives in Mexico or can't be found.
Find free legal help or check a lawyer at texasbar.com.
Frequently asked questions
My dad died and the house is still in his name. Is it mine now?
If he died without a will, you and the other heirs own it by law, each with a share. But the county records still show your father as the owner. To sell, borrow or prove ownership, you need to clear title using one of the paths in this guide.
How do I put inherited land in my name if my parents died without a will?
The most common paths are an affidavit of heirship, a small estate affidavit (only for the homestead, with a small estate) and a court heirship determination. Which one fits depends on your family, any debts and what the title company will accept. A lawyer or free legal aid can tell you which to use.
Does the deed pass to the children automatically, like in Mexico?
No. In Texas nothing changes in the county records on its own. The children may inherit by law, but until a document is recorded or a court issues an order, title stays in the name of the person who died.
Can I lose inherited land if the title isn't cleared?
Yes. If nobody pays the property taxes, the county can sue and sell the property at a tax sale. Any co-owner can also ask a court to divide or sell the land. And an outsider can buy one heir's share.
Can I get a homestead exemption if the house is still in my mom's name?
Yes, if it's your principal residence. Texas law lets an heir apply with an affidavit, the death certificate and a recent utility bill. See the guide on the heir homestead exemption.
Will FEMA help if the inherited house isn't in my name?
Possibly. For disasters declared on or after August 13, 2021, FEMA may accept, as a last resort, a signed self-certification that you inherited the home, along with the death certificate. Details are on DisasterAssistance.gov.
Is there heirs' property information in Spanish?
Yes. This guide has a full Spanish version that explains Texas law. For your specific case, look for free legal aid; several Texas organizations serve clients in Spanish.
Nuestras Tierras, https://nuestrastierras.org/en/texas/guides/heirs-property/. Updated: 2026-10-23. Legal review: pending. General information, not legal advice.