Detailed Answer

When a homeowner dies in Texas and the decedent’s house still has a mortgage, the mortgage does not disappear. The mortgage remains a lien on the property and must be dealt with before a new owner receives clear title. Whether the house can be sold during probate depends mainly on three things:

1. the type of probate administration (independent vs. dependent),
2. the powers granted to the personal representative in the will or by law, and
3. the mortgage lender’s rights (the lien and any foreclosure remedies).

1. Who can sell the house?

If the estate is being handled by an independent personal representative and the will (or applicable law) gives the representative the power to sell estate property, that representative can commonly sell real property without first getting a court order. Texas’s rules on independent administration are in the Texas Estates Code, Chapter 401. See: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.401.htm

If the estate is under dependent (court-supervised) administration, the personal representative usually needs the court’s permission (a court order) to sell real estate. See: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.403.htm

2. What happens to the mortgage lien?

The mortgage remains a secured claim against the house. At closing, the title company or closing attorney will require a payoff demand from the lender and will use sale proceeds to pay off the mortgage or obtain the lender’s release of the lien. If the sale proceeds do not fully cover the mortgage, the estate must address any deficiency before distributing assets to heirs.

If the estate does not make mortgage payments, the lender can exercise its rights under the deed of trust or mortgage (including nonjudicial foreclosure when authorized). Foreclosure procedures and the lender’s power of sale are governed by the Texas Property Code. See: https://statutes.capitol.texas.gov/Docs/PR/htm/PR.51.htm

3. Homestead and family protections

Texas offers strong homestead protections. If the house is the decedent’s homestead and a surviving spouse or minor children remain, special rules apply about selling or encumbering the homestead. Those constitutional and statutory protections may restrict a sale or require consent. See Texas Constitution, Article XVI and related provisions: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.16.htm

4. Practical options for handling a mortgaged house during probate

• Sell the house at market and pay the mortgage from the proceeds at closing. The title company will handle lien payoff and recording releases.
• Have an heir or buyer assume the mortgage (rare) or obtain a new loan to refinance—this requires lender approval.
• Keep the house in the estate and continue mortgage payments until the estate is administered (but the estate must have funds to do so).
• If the estate cannot pay the mortgage, the lender may foreclose. The personal representative must communicate with the lender to protect the estate and beneficiaries.

5. Steps a personal representative should follow

1. Confirm appointment as personal representative (get Letters Testamentary/Letters of Administration).
2. Locate the mortgage and request a written payoff statement from the lender.
3. Determine whether the administration is independent or dependent and whether the will grants authority to sell (see Chapter 401 for independent administration: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.401.htm).
4. If court approval is required, file the appropriate pleadings and obtain an order authorizing the sale.
5. Work with a real estate agent and a title company experienced with probate sales. The title company will handle lien payoff and closing statements.
6. Use sale proceeds to pay the mortgage, administration costs, valid creditors, taxes, and then distribute remaining assets according to the will or Texas intestacy law.

6. What buyers and title companies will require

Buyers and title insurers want clear title. They will require proof that the representative is authorized to sell (Letters), any necessary court orders if the administration is dependent, and a mortgage payoff to release the lien at closing. Without those, buyers or lenders will typically refuse to close.

7. Timing and risk

Probate can delay a sale. If mortgage payments are due and the estate lacks cash, risk of foreclosure rises. Promptly notifying the lender, getting a payoff, and coordinating a sale or refinance reduces risk.

Key statutory references (Texas):

• Independent administration: Texas Estates Code, Chapter 401 — https://statutes.capitol.texas.gov/Docs/ES/htm/ES.401.htm
• Dependent administration and court-supervised sales: Texas Estates Code, Chapter 403 — https://statutes.capitol.texas.gov/Docs/ES/htm/ES.403.htm
• Foreclosure and power-of-sale provisions: Texas Property Code, Chapter 51 — https://statutes.capitol.texas.gov/Docs/PR/htm/PR.51.htm
• Homestead protections: Texas Constitution, Article XVI — https://statutes.capitol.texas.gov/Docs/CN/htm/CN.16.htm

Because probate and mortgage law interact with many moving parts (wills, heir consent, lender rules, homestead claims), you should proceed carefully and document every step.

Disclaimer: This article is educational only and does not constitute legal advice. For advice about a specific situation, consult a licensed Texas attorney familiar with probate and real estate law.

Helpful Hints

• Get appointed as personal representative before marketing or selling the property; title companies require proof of authority.
• Contact the mortgage lender early and request a written payoff statement and information about whether the loan is assumable.
• Check whether the estate is independent or dependent; if dependent, expect to seek court approval before sale.
• If the property is homestead and there is a surviving spouse or minor child, get consent or court guidance before selling.
• Use a title company experienced with probate sales to ensure the mortgage lien is paid and released at closing.
• Keep accurate accounting of sale proceeds and payments; creditors and funeral/administration expenses must be handled before distributions.
• If mortgage payments are at risk, consider short-term steps to avoid foreclosure (e.g., a loan modification, forbearance, or expedited sale).
• When in doubt, consult a probate or real estate attorney in Texas early—timely legal advice can prevent costly mistakes.