Texas Heirs' Property: The Buyout Right, the Partition Rules, and Why Upkeep Records Matter in Court

A house passes to several heirs, one of them wants out, and the others cannot or will not buy them. For decades that story ended the same way in Texas: a partition suit, a forced sale, and a property leaving the family for less than it was worth. Chapter 23A of the Property Code changed the sequence in 2017. It does not stop a sale, but it puts three things in front of one — a valuation, a buyout right, and a preference for dividing the land rather than selling it.

What Counts as Heirs' Property

Chapter 23A may be cited as the Uniform Partition of Heirs' Property Act, and was added by Acts 2017, 85th Legislature, Regular Session, Chapter 297 (S.B. 499), effective September 1, 2017. It does not apply to every co-owned property — Section 23A.002(5) defines heirs' property by a test measured as of the filing of a partition action. The property must be held in tenancy in common and all of the following must be true:

• There is no agreement in a record binding all the cotenants that governs partition of the property
• One or more of the cotenants acquired title from a relative, whether living or deceased
• And any one of these applies: 20 percent or more of the interests are held by cotenants who are relatives; or 20 percent or more of the interests are held by an individual who acquired title from a relative; or 20 percent or more of the cotenants are relatives

Where that test is met, Section 23A.003(a) is mandatory in both directions: in a partition action under Chapter 23 the court shall determine whether the property is heirs' property, and if it is, the property must be partitioned under Chapter 23A unless all the cotenants agree otherwise in a record. Chapter 23A supersedes inconsistent provisions of Chapter 23 and the Rules of Civil Procedure governing partition.

Value Comes First

Before anything is bought or sold, Section 23A.006 fixes a number. The court orders an appraisal by a disinterested real estate appraiser, who determines fair market value assuming sole ownership of the fee simple estate and files a sworn or verified appraisal. Two alternatives exist: the court adopts a value where all cotenants have agreed one or agreed a method, and where the court finds the evidentiary value of an appraisal is outweighed by its cost, it determines value after an evidentiary hearing.

The appraisal instruction matters more than it looks. Valuing the property as if it were wholly owned, rather than as a bundle of fractional interests nobody wants, removes the discount that fractional ownership would otherwise create — and that figure is what the buyout is priced against.

The Buyout Right

Section 23A.007 is the provision that changed the economics. Where any cotenant has requested partition by sale, after the determination of value the court sends notice that any cotenant except one who requested the sale may buy all the interests of those who did.

• Cotenants have 45 days from the date of that notice to give notice to the court that they elect to buy
• The price for each selling cotenant's interest is the value of the entire parcel, determined under Section 23A.006, multiplied by that cotenant's fractional ownership
• Where more than one cotenant elects, the court allocates the right to buy among them in proportion to their existing fractional ownership
• The court then sets a date no earlier than the 60th day after its notice by which electing cotenants must pay their apportioned price into court
• If all pay, the court reallocates the interests and disburses the funds; if none pays, the action resolves under Section 23A.008 as if no purchase had been made

For an heir, that is a defined window and a known price. For anyone who has acquired a fractional interest intending to force a sale, it is the point at which the family gets first refusal at full pro-rata value rather than at auction.

Dividing Before Selling

If the interests are not bought out, Section 23A.008(a) directs the court to order partition in kind — physically dividing the property — unless, after considering the Section 23A.009 factors, it finds that partition in kind will result in substantial prejudice to the cotenants as a group. The court must approve a request by two or more parties to aggregate their individual interests, and where it orders partition in kind it may require payments between cotenants so that the division is just and proper.

Only if partition in kind is not ordered does Section 23A.008(b) direct a sale — and under Section 23A.010(a), that sale must be an open-market sale unless the court finds sealed bids or an auction would be more economically advantageous and in the best interest of the cotenants as a group. On an open-market sale the court appoints a broker, sets a reasonable commission, and the broker must offer the property in a commercially reasonable manner "at a price no lower than the determination of value."

Who Paid the Upkeep Is a Statutory Factor

Section 23A.009(a) lists what the court must consider in deciding whether partition in kind would cause substantial prejudice. Several are what you would expect — whether the property can practicably be divided, and whether dividing it would yield parcels worth materially less in aggregate than a sale of the whole. The rest are about the people.

• Evidence of the collective duration of ownership or possession by a cotenant and relatives who preceded them in title or possession
• A cotenant's sentimental attachment, including attachment arising because the property has ancestral or other unique or special value
• The lawful use a cotenant is making of the property and the degree of harm if that use could not continue
• The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with the property

That last factor is the one families consistently fail to evidence. In the ordinary heirs' property situation one relative has been paying the taxes, keeping the insurance current and cutting the grass for years while others contributed nothing — and when the partition suit arrives, that history exists as recollection rather than record. It is a statutory consideration. A cotenant who can produce years of paid invoices, dated photographs of the property's condition and a continuous maintenance record is giving the court evidence on a factor it is required to weigh; one who cannot is asking it to take their word.

The Practical Problem Underneath

None of this is quick. Between a death and a resolved partition, an heirs' property commonly sits empty for years while relatives who live elsewhere fail to agree. The statute protects the family's position in court; it does nothing about what weather, vegetation and unauthorised entry do to an empty house in the meantime, and a building that has deteriorated badly undercuts both the appraisal the buyout is priced against and the argument that it should stay in the family.

Where there is one relative willing to act, the useful thing they can do before any of the legal questions are answered is keep the building intact and keep the receipts. Both turn out to matter.