When a surviving spouse won’t cooperate: legal paths to convert a house to cash and distribute proceeds in California

Quick answer: First determine who actually owns the house (was it probate property, in a trust, joint tenancy, or community property?). If the house is part of the probate estate, the personal representative can ask the probate court to authorize a sale. If the spouse is a co-owner and refuses to agree, you can file a partition action to force sale and split the proceeds. If the property sits in a trust, beneficiaries can ask the court to compel the trustee to follow the trust’s instructions. Each route has procedural steps and possible spouse protections (homestead, family allowance, community property rights) that can affect timing and distribution.

Detailed answer — what to check and the legal routes in California

Start by gathering key documents: the decedent’s will, any trust documents, the recorded deed, title history, mortgage statements, recent property tax and insurance records, and the death certificate. These documents tell you whether the house is probate property, trust property, or jointly owned.

1. Is the house part of the probate estate?

If the house is owned solely by the decedent (or titled in the decedent’s name without a valid beneficiary designation or joint owner), it likely must pass through probate. When a will directs sale of estate property, the personal representative (executor) can petition the probate court for authority to sell the real property and distribute proceeds according to the will. The court routinely grants sales to pay debts, expenses, and distribute estate assets, but objections may delay or alter the outcome.

What a personal representative typically does:

• Open probate and get letters testamentary or letters of administration.
• Give notice to interested persons, creditors, and the surviving spouse as required by the Probate Code.
• Petition the probate court for authority to sell the real property (often after giving statutory notices). The court may set a hearing and consider any spouse objections.

If the spouse claims a legal interest (community property, homestead, or an executory right), they can file objections to the sale and ask the court to protect their rights. California Courts offers general probate self-help resources explaining probate steps and sales: California Courts — Probate Self-Help.

2. If the surviving spouse is a co-owner who refuses to sell — use a partition action

If the spouse is a co-owner on title (for example, the house is titled in both names, or part of the estate’s interest is co-owned), a co-owner may force sale by filing a partition action. The court can divide the property in kind if possible or order a sale and divide net proceeds among owners according to their ownership shares.

Where to look for the law: California’s partition statute allows co-owners to seek partition in court. See Code of Civil Procedure § 872.010 and related provisions for how partition works in California: CCP § 872.010.

3. If the property is held in a revocable trust

A trustee must follow the trust terms. If the trust directs sale, the trustee should sell. If the trustee refuses, beneficiaries can petition the court to compel the trustee to act, remove the trustee for breach of fiduciary duty, or seek instructions. Trust matters are handled in the probate/estate court and have their own procedures.

4. Spouse protections that can affect sale and distribution

• Community property rights: In California, spouses typically own community property in a marriage. If the house (or part of it) is community property, the spouse’s share may pass differently than other estate assets.
• Homestead and occupancy rights: The surviving spouse may have a homestead allowance or right to occupancy for a limited time, which can postpone sale or affect distribution.
• Family allowance and creditor priorities: The spouse can claim allowances for immediate support and the estate may need to satisfy creditor claims before distributions.

These protections mean a probate sale or forced sale via partition may not be immediate or may require the court to determine priority and amounts to be paid first.

5. Practical alternatives to immediate litigation

• Negotiate a buyout where the spouse keeps the house and pays other beneficiaries their share, often determined by appraisal.
• Mediation between beneficiaries and spouse to reach an agreed sale or buyout plan (less costly and faster than litigation).
• Temporary agreements for possession, maintenance payments, or sale timelines while further steps proceed.

6. Typical timeline and costs

Timelines vary. A negotiated buyout or trustee sale can resolve matters in weeks to months. Probate-authorized sales and partition actions often take several months to a year or more, depending on objections, court schedules, and whether appeals follow. Costs include attorney fees, court fees, appraisal and escrow costs, and possible homestead or family allowance payments.

Step-by-step checklist to move forward

1. Collect documents: deed, will, trust, title report, mortgage, death certificate.
2. Confirm ownership type: probate estate, trust asset, joint tenancy, or community property.
3. If in probate: have the personal representative petition the probate court to sell the property and provide required notices.
4. If co-owned and spouse refuses: consult an attorney about filing a partition action (see CCP § 872.010: https://leginfo.legislature.ca.gov/).
5. If in trust: beneficiaries can petition the court to compel the trustee or seek trustee removal if necessary.
6. Consider negotiation/mediation or a buyout as a faster, cheaper option.
7. Hire a California attorney experienced in probate, trust, and real estate litigation to advise and, if necessary, file the appropriate petitions or actions.

Helpful hints

• Do not force self-help (changing locks, removing property, or cutting off utilities). Those acts can cause legal trouble and undermine your position.
• Get a professional appraisal so any buyout or division is based on market value. Courts rely on appraisals in partition cases.
• Document communications in writing. Keep copies of notices, offers, and responses.
• Ask about temporary orders for possession or family allowance in probate if the spouse needs housing while the estate settles.
• Consider mediation before filing court actions — courts often expect parties to try alternative dispute resolution in estate and trust disputes.
• If time is important (e.g., to pay debts or taxes), request expedited court relief or interim orders to preserve estate value.
• Work with counsel who understands California probate, trust law, and partition procedures. The California Legislative Information site can help you look up statutes: leginfo.legislature.ca.gov.

Where to learn more: Start at the California Courts probate self-help pages: https://www.courts.ca.gov/selfhelp-probate.htm, and review partition procedures in the Code of Civil Procedure, e.g. CCP § 872.010: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=872.010.&lawCode=CCP.

When to talk to an attorney

Speak to an attorney if any of the following apply: the spouse disputes ownership or beneficiary entitlements; the estate must sell quickly to pay debts; trust or will language is unclear; or a co-owner refuses all reasonable offers. An attorney can explain likely outcomes, prepare petitions (probate petitions, motions for sale, partition complaints), represent you in hearings, and negotiate buyouts or settlement terms.

Disclaimer: This article is for general information only and does not constitute legal advice. It explains general California law and common procedures but cannot predict the outcome of a specific dispute. For advice about your particular situation, consult a California attorney licensed to practice in probate, trust, or real property matters.