Detailed Answer
This explains how to pursue a court-ordered partition (forced sale) of real property in Texas when a deceased parent owned the house. This is informational only and is not legal advice.
Overview: A partition action asks a Texas court to divide co-owned property among owners or, if physical division is impractical, to order a sale and divide the proceeds. Texas law governing partition actions is codified at the Texas Property Code, Chapter 23. See the statute for statutory procedures and remedies: Texas Property Code, Chapter 23.
Step 1 — Confirm who legally owns the house
1. Find the deed: determine the names on title (sole owner, joint tenants, tenants in common, or held in the decedent’s estate). A deed will show the form of ownership.
2. If your father died owning the house in his name alone, the house may be part of his probate estate until title is transferred. If he left the house to heirs by will, or if heirs get title by intestacy, each heir’s share matters. If the property was held jointly with rights of survivorship, the survivor may own the property outright.
3. If the estate is open in probate and the estate owns the property, the personal representative (executor/administrator) typically has authority to act on the estate’s behalf and can file a partition on behalf of the estate if appropriate.
Step 2 — Determine whether a partition action is the right tool
Partition suits are appropriate when two or more people hold an interest in the same real property and cannot agree on use or sale. Alternatives include a negotiated buyout by one owner, sale by the estate during probate, or settlement/mediation among heirs. Courts favor partition in kind (physical division) when it’s practicable; otherwise they order partition by sale.
Step 3 — Who to name in the lawsuit (necessary parties)
Name all persons and entities with an interest in the property: co-owners, heirs, devisees, any personal representative if the estate still holds title, and lienholders (mortgagees). Failing to join interested parties can delay the case or complicate the sale.
Step 4 — Where and how to file
1. Venue: File in the district court of the county where the property is located; county courts may have jurisdiction for smaller matters, but partition of real property is typically filed in district court.
2. Petition: Prepare and file a petition for partition that describes the property, lists all owners and interest holders, explains why partition in kind is not feasible (if you seek sale), and asks the court to partition or order a sale and distribute proceeds. Include copies of deeds, death certificate, probate documents (if any), and any other supporting records.
3. Service: Have all defendants (co-owners, heirs, lienholders) served with citation and the petition per Texas Rules of Civil Procedure. The court cannot proceed until properly served parties are given notice.
Step 5 — Court process and remedies
After filing, the court will typically:
- Set deadlines and discovery
- Consider motions and any contests about ownership, liens, or valuation
- If sale is ordered, appoint commissioners or a master to value property and oversee sale or authorize a sheriff’s sale mechanism
Texas law allows the court to order partition in kind or partition by sale and to allocate proceeds after paying liens, costs, and attorney’s fees. The court may also permit one owner to buy out others at appraised value.
Practical considerations
Mortgages, liens, and taxes: Outstanding mortgage or tax liens typically must be paid from sale proceeds or otherwise resolved before net proceeds are distributed. If mortgage remains, lender rights may affect timing and sale method.
Homestead and family protections: If the property has a valid homestead claim or if surviving spouse or minor children have statutory protections, those issues can affect partition and sale. Consult a probate/real property attorney if homestead claims are possible.
Costs and timelines: Partition suits can take many months to over a year depending on disputes, title complications, and court backlog. Costs include filing fees, service fees, appraisal and commission fees, attorneys’ fees, and costs of sale.
What a typical court-ordered sale looks like in Texas
If the court orders sale, the court may:
- Appoint three commissioners to view and appraise the land (or appointment of a master or special commissioner)
- Authorize public sale at auction (often at county courthouse) or order sale by broker under court supervision
- Require payment of liens, court costs, commissions, and distribution of net proceeds to owners according to their interests
When you should get a lawyer
Hire a Texas probate or real property attorney if any of the following apply:
- Title is disputed or unclear
- Probate estate holds the property and you are not the personal representative
- Liens, mortgages, or tax issues exist
- There are many heirs or difficult family disputes
An attorney can prepare the petition, ensure proper parties are joined, handle service, negotiate buyouts, and represent you at hearings.
Relevant statute: See Texas Property Code, Chapter 23 (Partition or Sale of Real Property): https://statutes.capitol.texas.gov/Docs/PR/htm/PR.23.htm.
Disclaimer: This information is educational only and is not legal advice. Laws change and every situation is different. Consult a licensed Texas attorney to get advice tailored to your situation.
Helpful Hints
- Gather documents first: deed(s), death certificate, will, probate filings, mortgage statements, tax bills, homeowners insurance, HOA documents, and any title insurance policy.
- Check title on the county clerk’s real property records to confirm ownership and recorded liens.
- Talk with co-owners about voluntary sale or buyout before filing. A negotiated resolution is faster and less expensive.
- If the estate is in probate, ask the personal representative whether they will sell the property as part of estate administration.
- Consider an appraisal early so you know current market value before asking for sale or buyout.
- Expect costs: court filing fees, service fees, appraisal and commissioner fees, possible attorneys’ fees, and sale commissions.
- Prepare for timeline variability: contested cases typically take much longer than uncontested ones.
- If minors or incapacitated persons have an interest, the court may require special procedures to protect their shares.
- Ask about mediation: many courts encourage or require mediation to resolve disputes before trial.