5 Things your probate attorney wished your realtor knew
Selling real estate is never just about the property—it’s about the people and the paperwork behind it. When a home has belonged to someone who passed away, things can get complicated quickly. As probate attorneys, we’ve seen too many real estate deals hit delays—or completely fall through—because of misunderstandings about the legal process.
Here are five things probate attorneys wish realtors knew when dealing with inherited property.
1. Everything can’t be solved with an affidavit of heirship
We see this situation all the time: someone passes away, and a well-meaning friend or even a realtor suggests using an affidavit of heirship to transfer the property. While this document can be helpful in some cases, it’s definitely not a one-size-fits-all solution.
An affidavit of heirship is simply a sworn statement about the deceased person’s marital and family history. It doesn’t transfer ownership on its own—it just helps show who the legal heirs might be under Texas intestacy laws. In other words, it supports what the law already says, but it doesn’t create legal title.
Affidavits of heirship won’t work if:
The heirs don’t all agree to sell
Any of the heirs are minors
Some heirs can’t be located—or have passed away themselves
Also, these documents don’t carry the same authority as a court order or probate judgment. Title companies are often hesitant to accept them, especially when there are questions or complications. If the property has been in the family for decades or has several generations of heirs, relying on an affidavit could lead to delays or even a failed sale.
Bottom line: Don’t assume an affidavit is the easy answer—ask a probate attorney before relying on one.
2. Spouses should probate the will—even if they think they inherited everything
Many surviving spouses believe they don’t need probate because their loved one “left them everything” in a will. But unless that will is admitted to probate, it has no legal effect. Title companies can’t honor a will that was never filed with the court.
Even in community property states like Texas, there can be surprises—especially when there are children from a prior marriage. Did you know- Wills are required to be probated within four (4) years from the date of death? Yes, there are exceptions to the law that will allow wills to be probated after the four year deadline, however, the exceptions usually require additional hurdles to jump. You may have a requirement to notice all the heir by law (whether they are listed in the will or not). This may cause additional problems if the heirs are not in agreement or if they cannot be found.
Encourage surviving spouses to have the will reviewed by a probate attorney as soon as possible. Sometimes a simple probate process is all that’s needed to establish clear title and proceed with the sale.
3. Send your client to a probate attorney before listing the property
This tip alone can save you hours of frustration. It’s not uncommon for a realtor to start prepping a property for market—ordering photography, listing the home, scheduling open houses—only to discover the person they’re working with isn’t legally authorized to sell it.
If the last deed on record is still in the deceased person’s name, your seller needs legal authority to transfer ownership. If your seller did not legally inherit the property, obtaining legal authority could be handles through the appointment of an executor or administrator of the estate. It’s important to remember, that the sale process cannot begin until the executor or administrator is appointed.
Instead of spinning your wheels, refer the client to a probate attorney before listing the home. It may delay the listing a bit—but it’ll prevent far bigger delays later.
4. Selling in a fiduciary capacity makes your job easier
When a client has been appointed as the executor or administrator of the estate, they can act with legal authority on behalf of the estate. That means they can sign contracts, make decisions, and answer questions with confidence.
Buyers and title companies also feel more secure knowing the sale is being handled by someone with proper court authority. It helps ensure that no unknown heirs show up later, and that the transaction is legally protected.
You may have also heard that selling under administration adds may time delays and restrictions. This is usually more prevalent when the estate undergoes dependent administration. Texas allows for independent administration when indicated in the will or when all heirs agree. It is important to have a probate attorney review the case before making assumptions about the requirements for the sale of the property.
5. Encourage new buyers to talk to an estate planning attorney
This one may not seem like your responsibility—but it’s a great value-add for your clients. Once they’ve bought a home, they should protect it. If a new homeowner passes away without a will, their family may face the same challenges you just helped navigate.
Referring buyers to an estate planning attorney helps them understand how to title the property or can help the client create estate planning documents that can help with future conveyances of the property. It’s a small step that can prevent major headaches down the line.
Final Thoughts
Probate and real estate are deeply connected—and when handled correctly, they don’t have to be intimidating. A realtor’s role is critical in helping families through transitions, and a little legal knowledge can go a long way.
Partnering with and experience, probate attorney early in the process, can save clients time, avoid deal-breaking delays, and position realtors as a knowledgeable, trustworthy professional in the market.
