Inherited land in probate. Can I sell it before probate closes?

Who is allowed to sign the deed

When someone dies owning land, the family may become the owners that same day. A title company still needs proof of who the owners are, and someone needs legal authority to sign.

• If there’s a will, the court appoints the executor named in it.
• If there’s no will, the court appoints an administrator, usually a close family member.

The court gives that person a document, often called letters testamentary or letters of administration. That document is what a title company usually asks for before it lets anyone sell. Without it, or a substitute the title company accepts, most buyers won’t close.

Selling while probate is still open

Once the executor or administrator has their letters, a sale can usually move forward. Two things decide how easy it is:

1. What the will says. Many wills give the executor power to sell property. That makes things simpler.
2. What your state requires. Some states let the executor sell with little court involvement. Others require a judge to approve the sale, and sometimes the price. Texas, for example, has “independent administration,” where the executor can often sell without going back to the judge for each step.

The money from the sale goes into the estate. It pays the estate’s debts first, then gets split among the heirs the way the will or state law says.

If probate was never started

This is more common than people think. A parent passed years ago, nobody opened probate, and now the tax bills keep coming in the parent’s name.

You have a few paths, depending on the state:

• Open probate now. It can be done years later in many states, though some have deadlines for probating a will.
• Use a state shortcut. Some states offer simplified procedures for smaller estates. In Texas, families sometimes use an affidavit of heirship, a sworn statement about who the heirs are that gets recorded in the county deed records. Many title companies accept it, and Texas courts treat it as evidence once it has been on record for five years. Other Texas estates with a will use a “muniment of title,” a faster court process when there are no unpaid debts other than those secured by real estate.
• Ask the title company first. Before paying anyone, a title company can tell you exactly what they need to insure a sale of that parcel.

When the siblings don’t agree

This is the hardest part, and it’s usually about feelings more than paperwork. One sibling wants to keep the land for the family. Another wants the money. A third doesn’t answer the phone.

A few things that help:

• Get a written number first. Arguments about “what it’s worth” stop faster when there’s a real offer on paper.
• Let the executor lead. If one has been appointed, they usually have the authority to act, within what the will and the court allow.
• Consider a buyout. One sibling can buy out the others’ shares and keep the land.
• Split the land instead of the family. If one heir is attached to part of the property, like the old house, a survey can carve that part out for them while the rest is sold. Not every parcel can be divided, so check the county’s rules first.
• Know the last resort. If co-owners truly can’t agree, any one of them can usually ask a court to divide or sell the property. It’s called a partition action. It’s slow and expensive, so it’s worth avoiding if you can.

From our desk

A real deal, in Daniel’s words

Three siblings inherited 42 acres in Comal County, Texas, and the estate was in probate. The two brothers wanted to sell. Their sister didn’t, and for her it wasn’t about money. The old family house and the land around it were where she grew up.

So instead of trying to buy all 42 acres, I asked her what she wanted to keep. I paid for a survey to split off about 12 acres with the house, and she kept that as her share of the estate. I bought the other 30 acres from the estate, with the executor signing, and the money went to her two brothers. Everyone’s share came out fair, nobody went to court, and all three were happy with how it ended.

This guide is general information, not legal advice. Probate rules vary by state and county. A probate attorney or title company in the county where the land sits can confirm what applies to you.