Selling an Inherited Home in San Antonio: Affidavit of Heirship, Probate, and Clearing Title Before You List

You cannot sell an inherited San Antonio home until title reflects that you own it. The deed still names the deceased, and no Texas title company will issue a policy — which means no buyer with a mortgage can close — until the chain of title is cured. That cure is a legal process, not a paperwork favor, and the path depends on whether there is a will, whether the estate has debts, and how the deceased actually held title.

Start before you list. Sellers routinely accept an offer, open title at a Bexar County title company, and then discover they have a 60 to 120 day probate detour ahead of them. Buyers walk. Do the title work first.

Step one: figure out how the deceased actually held title

Pull the last recorded deed from the Bexar County Clerk's official public records (search by grantee name). How the property vests controls everything that follows.

• Sole ownership. The estate has to transfer it. Probate or an heirship instrument is required.
• Community property with right of survivorship. If the spouses signed a survivorship agreement under Texas Estates Code Chapter 112, the surviving spouse takes automatically — record an affidavit and a death certificate and you can sell. Without that agreement, the deceased spouse's community half still has to pass through the estate.
• Joint tenants with right of survivorship (JTWROS). Same idea — automatic transfer to the survivor if the deed says so.
• Transfer on Death Deed (TODD). If the decedent signed and recorded a TODD under Texas Estates Code Chapter 114 before death, the beneficiary records an affidavit of death and takes title outside probate. This is the cleanest path when it exists.

Bring the death certificate, the last deed, and any will or trust to a Texas probate attorney before you do anything else. What you spend on that consultation is trivial compared to what you will spend re-doing it wrong.

If there is a will: two paths in Bexar County Probate Court

Bexar County has two statutory probate courts (Probate Court No. 1 and No. 2) that hear these cases at the Paul Elizondo Tower downtown. You have four years from the date of death to admit a will to probate under Texas Estates Code § 256.003. Miss that window and the will is generally treated as if it did not exist, and the estate passes by intestacy.

Independent administration

If the will names an independent executor (most Texas wills do) or all heirs agree, the court appoints the executor, issues Letters Testamentary, and the executor sells the house and signs the deed. This is the workhorse path. Expect roughly 30 to 90 days from filing to Letters, depending on the court's calendar and whether anyone contests.

Muniment of title

When the only asset requiring transfer is real property and the estate has no unpaid debts other than liens on that real property, Chapter 257 lets the court admit the will as a muniment of title — no executor, no administration. The court's order itself becomes the transfer document. It is faster, cheaper, and specifically designed for the situation where an heir wants to sell an inherited house. Bexar County title companies accept a certified copy of the muniment order and the will as the vesting instrument.

If there is no will: heirship

When someone dies intestate in Texas, the property passes under the intestacy rules in Estates Code Chapter 201 — which are not what most people assume, especially for blended families with children from prior relationships. Two tools clear title.

Affidavit of Heirship (Texas Estates Code Chapter 203)

Two disinterested witnesses — people who knew the decedent and the family but do not inherit — swear to the family history: marriages, divorces, children, prior deaths. The affidavit is recorded in the Bexar County real property records. After five years on record, it becomes prima facie evidence of heirship. Many Texas title companies will insure a sale sooner than that — sometimes immediately — if the facts are clean, the family agrees, and the underwriter approves. Cost is a few hundred dollars in attorney time plus recording fees.

Affidavits work poorly when heirs disagree, when there are minor children, when a spouse's community interest is unclear, or when creditors may exist.

Judicial Determination of Heirship

When an affidavit will not fly, you file a Determination of Heirship proceeding in probate court. An attorney ad litem is appointed to represent unknown heirs, the court hears evidence, and the judgment identifies who owns what share. This is slower (three to six months is common) and more expensive, but the court order is bulletproof for title purposes.

Why a Small Estate Affidavit usually does not help

Estates Code Chapter 205 allows a Small Estate Affidavit when the estate is under $75,000 and there is no will, but for real property it only transfers a homestead to specific statutory heirs. It does not work for rental properties, second homes, or most non-homestead situations. Do not assume it applies just because the estate is small.

What the Bexar County title company will actually require

Every title company underwrites heirship situations slightly differently, but expect this checklist:

• Certified death certificate
• Certified copy of the will and probate order, or a recorded Affidavit of Heirship, or a judgment determining heirship
• Letters Testamentary or Letters of Administration if an executor or administrator is signing
• Signatures from every heir on the deed if title vests in multiple heirs — one sibling cannot sell the whole house
• Payoff of any liens, including Medicaid Estate Recovery Program (MERP) claims if the decedent received long-term care benefits after age 55
• IRS estate tax closing letter for taxable estates (rare — the federal exemption is in the millions)
• Resolution of any outstanding property tax delinquencies with the Bexar County Tax Assessor-Collector

Open title early. Ask the escrow officer to run a title commitment before you sign a listing agreement so you know exactly what curative work is needed.

Tax realities heirs should understand before pricing

This is where a Texas CPA earns their fee, but two rules matter for pricing decisions.

Stepped-up basis

Under IRC § 1014, the property's tax basis resets to fair market value on the date of death. If Mom bought the Alamo Heights house in 1978 for $60,000 and it is worth $650,000 when she dies, your basis is $650,000. Sell for $665,000 six months later and your taxable gain is $15,000, not $605,000. Get a written date-of-death appraisal from a Texas-licensed appraiser — do not rely on BCAD's assessed value, which is almost always lower than market.

Homestead exemption and tax cap

The decedent's homestead exemption and the 10% appraised-value cap under Texas Tax Code § 23.23 do not transfer to heirs automatically. When BCAD updates ownership, the cap resets and taxes can jump significantly at the next January 1 valuation. If an heir intends to live in the property, they must file their own Form 50-114 with BCAD to establish a new homestead. If heirs are selling, factor the tax reset into net proceeds — buyers who occupy will file their own homestead, but the current tax year proration at closing may reflect the higher, uncapped valuation.

What most people get wrong

• Listing before probate is opened. Buyers sign, inspect, spend option money, and then title comes back uninsurable. Contract dies, and you have a stigmatized listing. Open title and confirm the path before you sign with an agent.
• Assuming the surviving spouse owns everything. In Texas, community property does not automatically survivorship without a signed agreement. The deceased spouse's community half passes to their children — including children from prior marriages — under intestacy. That is why so many second-marriage estates end up in contested heirship.
• Missing the four-year probate deadline. A will not admitted within four years of death generally cannot be probated in the standard way. Heirs then have to run heirship anyway, which defeats the purpose of the will.
• One heir signing the listing agreement and the deed. If title vests in three siblings, the listing agreement needs all three, and the closing deed needs all three signatures notarized. Skip a sibling and the sale does not close.
• Using BCAD value as the stepped-up basis. BCAD assessed value is not fair market value. Under-report basis and you overpay capital gains tax. Get a retrospective appraisal dated to the date of death.
• Ignoring MERP. If the decedent was on Medicaid for long-term care after age 55, the state has a claim against the estate. Title will not close without addressing it. Contact HHSC's MERP unit early.

When you are ready to list

Once title is clear, an inherited home usually sells like any other San Antonio property — with the added disclosure that the seller has never occupied it. Sellers who never lived in the home complete the TREC OP-H Seller's Disclosure Notice to the best of their knowledge and can check "seller has never occupied" for items they genuinely do not know.

When the paperwork is done, browse comparable active listings and recent sales at HomeFinder to sanity-check pricing, list the home yourself at /list-your-home, or find a Bexar County agent who has handled probate sales at /agents. The legal cleanup is the hard part; getting the house sold, once title is clear, is the straightforward part.