During the probate period, an executor or court-appointed administrator manages the property for the estate, but heirs do not own the home until the court clears the transfer (or the deed is otherwise updated). While probate is open the house is part of the decedent’s estate and legal title remains in the deceased person’s name.
Understanding probate and property ownership
Probate is the court process that proves a will (or applies intestacy rules if there’s no will) and gives a representative authority to gather assets, pay debts, and distribute what’s left.
Real estate that was owned solely in the decedent’s name is usually a probate asset because title must be changed before a new owner can be recorded.
Legal title vs beneficial ownership
Legal title stays in the decedent’s name until the court signs an order transferring it. “Beneficial ownership” — who will ultimately receive the house — is only realized once the court authorizes distribution or the property transfers under a non-probate mechanism. Practically, an heir may live in the house with the executor’s permission, but that does not equal legal ownership.
Who manages the house while probate is open?
When a will names an executor—or when the court appoints an administrator because there’s no will—that person becomes the home’s temporary guardian. It’s their job to keep insurance active, arrange needed repairs, collect rent if the property is leased, and make sure the place isn’t damaged or neglected.
Their loyalty runs to the estate and everyone with a stake in it, from creditors to beneficiaries, rather than to any single heir.
What happens if there’s a will vs. no will?
If the will names an heir for the house, the will directs who should receive it, but the transfer still waits on probate clearance. If there’s no will, state intestacy rules determine who inherits; the court appoints an administrator to carry out those rules.
In Texas, for example, the surviving spouse and children are often first in line under intestacy, and local rules govern the exact split.
Selling the house during probate
An executor can sell the house during probate if selling is necessary to pay debts or otherwise benefits the estate, but most sales require court approval or notice to creditors and potential buyers.
Buyers and title companies will want to see the proper court orders before closing, so expect extra timeline and paperwork compared with an ordinary sale.
Living in a house or renting the property during probate
An executor may allow an heir to stay in the home or may rent it—if doing so benefits the estate and doesn’t harm creditors or other heirs.
Any occupancy agreement should be documented and fair market rents applied when appropriate; otherwise occupants can create conflict that the court may need to resolve.
Special situations that avoid probate
Certain ownership forms skip probate: joint tenancy with right of survivorship, tenancy by the entirety, transfer-on-death (beneficiary) deeds where available, and property held in a living trust.
In Texas, some of these tools are commonly used to keep a homestead or other real estate out of probate.
Mortgages, debts, and the homestead in Texas
A mortgage does not disappear at death—the estate must keep paying it, refinance, or sell the house to satisfy the lender. Texas is a community-property state and has special homestead protections that can affect how a surviving spouse and heirs receive real property, so local rules often influence whether a home stays or is sold. Also note Texas gives an executor a long window to act in some respects; the state’s probate timing rules differ from other states.
When ownership actually transfers
Ownership changes only after the estate settles creditor claims, completes required filings, and the court signs the distribution order (or the deed/transfer document is recorded). Once the court authorizes distribution, the executor records the new deed and title is updated in the county records — that’s the moment heirs become legal owners.
Protecting the property while probate runs
Practical steps an executor should take: maintain insurance, secure the premises, change locks if needed, do necessary ongoing maintenance, and document expenses. Those costs are estate expenses and should be tracked carefully to justify distributions later.
When to consult an attorney for probate law advice
If the estate owns real property, if creditors or debt and tax issues loom, if family members disagree, or if the property sits in more than one state, professional guidance keeps the process moving and helps avoid mistakes that can delay transfer or increase costs. State law and local county practice can materially affect steps and timing, so local counsel is often worth the cost.
FAQs about who owns the house during the probate process
No, not legally. A buyer’s title company will require probate orders (or a non-probate transfer) before issuing title insurance. The executor can sell the property on behalf of the estate with court approval.
Yes, if the executor permits it and the arrangement doesn’t harm the estate. Any rent or contribution toward upkeep should be documented.
Often yes. Property that passes by right of survivorship (joint tenancy/tenancy by the entirety) or by beneficiary deed avoids probate; however, each title form has tradeoffs and tax or creditor implications to consider.
That depends on the estate’s complexity, creditor deadlines, and whether anyone contests the will. Simple estates may clear in months; contested or asset-heavy estates can take a year or more. Texas rules and any out-of-state property can lengthen the process.
A well-crafted estate plan can nominate a trusted executor, spell out whether the house should be sold or kept, and even name alternates if the first choice can’t serve. Because courts generally follow those written instructions, a clear plan reduces arguments and keeps maintenance decisions in familiar hands while probate moves forward.
