When you invest in real estate, you are always looking for an edge. Probate and heirship properties offer exactly that kind of opportunity, but only if you know what you are getting into.
The Big Question
Probate is the legal process of administering the estate of a deceased person. It involves resolving any outstanding claims against the estate and distributing the deceased’s property to the rightful heirs or beneficiaries.
For real estate investors, the question you are faced with and need to be able to explain is, “What happens to property when someone dies?” The answer depends on whether the person left a valid will and whether that will was properly filed with the probate court.
In Texas, the Texas Estates Code, which became effective on January 1, 2014, governs all transfers of a deceased person’s property, whether through a court-validated will or through what is called intestacy, which means dying without a valid will.
When There Is No Will (Intestate Succession)
When someone dies without a will, Texas law dictates who inherits based on the family situation and the nature of the property. This is where things can get complicated for real estate investors, because you may be dealing with multiple heirs who have never worked together and may not agree on anything.
Here is a simplified overview of how Texas distributes property without a will.
- Married with children (all from the same marriage): Community property goes entirely to the surviving spouse, while separate property goes two-thirds to the children and one-third to the surviving spouse as a life estate.
- Married with children from a prior relationship: Community property is split 50/50 between the surviving spouse and the children.
- Married with no children: Community property goes entirely to the surviving spouse, while separate property is divided between the spouse, the father, and the mother.
- Unmarried with children: Everything goes to the children, divided equally.
- Unmarried with no children: Property passes to parents, then siblings, then extended family.
In intestate situations, the key document is an Affidavit of Heirship, which is typically prepared by the title company and signed by a family member. It must be corroborated by two independent, non-related parties who knew the deceased, preferably for at least 20 years, then notarized and recorded in the real property records of the county where the property is located. Deeds from all legal heirs must also be executed, and any liens against any of the heirs attach to the property and must be paid before closing.
When There Is a Will
If the deceased left a valid will, here is how the process works. The original executed will is submitted to the Probate Court in the county where the individual had a domicile or fixed place of residence at the time of their death, along with a legal petition signed usually by the executor named in the will. A hearing is then scheduled, which in Dallas County is typically at least 30 days out. Both the Executor and an attorney appear at the hearing, where the Executor provides oral testimony establishing the will’s validity. Following the hearing, the Probate Court Judge issues Letters Testamentary to the Executor, which formally authorize the Executor to act under the will, including the power to sell property.
There is also a simplified option called a Muniment of Title, in which, once the application is approved in a hearing in the probate court, then a certified copy of the approved probate application and will is recorded in the real property records. This establishes ownership in the beneficiaries without full estate administration, and it works well in certain straightforward situations.
The Medicaid Estate Recovery Program Can Be a Hidden Complication
One issue that can catch investors off guard is the Medicaid Estate Recovery Program, commonly known as MERP. Since 2005, Texas law allows Medicaid to make a claim against the estate of a deceased recipient for covered long-term care services, provided the recipient was 55 or older at the time the services were received and had applied for those services on or after March 1, 2005.
Before closing, the title company must send a certification to Medicaid asking whether they intend to make a claim, and that process takes approximately 10 days from submission. This step is not optional. Certain exceptions do exist, such as when there is a surviving spouse, a minor child, or a disabled child of any age, or when the estate value is $10,000 or less. If you are purchasing a probate or heirship property, that timeline needs to be built into your closing schedule.
Why Probate Properties Can Be Good Investments
Approximately 80 percent of all properties left to family members get sold within one year of inheritance. Most heirs want to sell. They generally do not want to invest time or money getting the property into retail-ready condition, which means they are often more open to a wholesale transaction.
The challenge is that these deals are often time-consuming, emotionally complex, and title-sensitive. You may be dealing with multiple sellers who have never been in a room together and who have deeply held feelings about their family home. Title issues are common and must be resolved before any deal can close. That is exactly why having an experienced real estate attorney in your corner is not a luxury but a necessity.
Get the Legal Support You Need
If you are pursuing probate or heirship properties, or if you have inherited property yourself and are not sure what to do next, the Lonergan Law Firm PLLC can help you navigate every step of the process. We have handled virtually every variation of these transactions over 25 years of practice, from heirship affidavits to title clearance to closing.
Gaylene Rogers Lonergan
Board Certified Residential and Commercial Real Estate Attorney
Lonergan Law Firm PLLC and Title Closing Office
214-503-7509 | lonerganlaw.com | grogers@lonerganlaw.com
© Gaylene Rogers Lonergan and Lonergan Law Firm, PLLC, 2026. All rights reserved. This article is provided for educational reasons exclusively and is not meant to be construed as legal advice. The Lonergan Law Firm PLLC will represent you only after being retained and that agreement is made in writing.
