What to do if the surviving spouse refuses to sell the house the will directs (Georgia)

Short answer: First determine how title to the home is held. If the decedent owned the home solely and the will directs a sale, the executor (personal representative) can ask the probate court for authority to sell the property and distribute the proceeds. If the surviving spouse holds title as a joint owner (including tenancy by the entirety or joint tenancy with right of survivorship), the will usually cannot force the sale. In that case you may need a partition action or other litigation. Georgia probate and property rules both affect the outcome.

Detailed answer — step by step under Georgia law

1. Identify ownership and any surviving interests

The first and most important question is how title is held:

If the decedent owned the house solely in their name, the house is part of the decedent’s probate estate and the executor can act for the estate subject to court approval.
If the house is owned jointly with the spouse and there is a right of survivorship (joint tenancy or tenancy by the entirety), the property often passes automatically to the surviving spouse outside probate and a will cannot force the sale of property that passed by operation of law.
If the decedent granted the spouse a life estate, homestead right, or there are statutory protections (homestead allowance, family allowance, or an elective share), those rights can limit or delay an immediate sale.

Because the answer turns on title and statutory protections, pull the deed, the will, mortgage statements, and any trust documents as soon as possible.

2. If the house is estate property: the executor’s powers and asking the court to sell

When the house is part of the probate estate, the executor (personal representative) must open probate, obtain letters testamentary (or letters of administration), and then obtain court approval to sell real property if the will directs sale or if sale is necessary to pay debts, taxes, or to carry out estate administration. The probate court supervises the administration and can authorize sale by public or private sale with court approval and notice to interested parties.

Practical steps:

Probate the will in the county probate court where the decedent lived. The court will issue letters to the executor.
File a petition or account seeking authority to sell the estate real property if the executor does not have clear non-judicial authority. Include the will’s language, proposed sale terms, and a statement of why sale is needed (e.g., to satisfy bequests, pay debts, or distribute sale proceeds).
Give required notice to heirs, creditors, and interested parties and follow the court’s procedures. If approved, the court will allow sale and distribution of proceeds per the will and Georgia law.

Probate and administration rules are found in Georgia’s statutes governing wills, trusts, and probate (Title 53) and local probate court procedures. See Georgia Code (Title 53) for probate topics: https://law.justia.com/codes/georgia/2020/title-53/

3. If the spouse holds title jointly: partition, quiet title, or negotiation

If title passed to the surviving spouse by operation of law (joint tenancy, tenancy by the entirety, or survivorship deed), the will typically cannot force that spouse to give up ownership. You have a few options:

Negotiate a voluntary buyout or sale with the spouse. Often the least expensive solution is agreement and compromise.
Bring a partition action in the appropriate Georgia court to force sale or physical division of property among co-owners. Partition suits are governed by Georgia property law and can result in partition in kind or sale with proceeds distributed among owners. See Georgia property statutes (Title 44) for partition and remedies: https://law.justia.com/codes/georgia/2020/title-44/
If the spouse claims a life estate or homestead right, challenge or address those claims in court; the court will determine whether the estate’s interest can be sold or whether the spouse’s statutory protections prevent sale.

A partition action can be time-consuming and costly. Courts will consider whether partition in kind is practical or whether sale is the only fair remedy.

4. If the spouse is also the executor and refuses to follow the will

If the surviving spouse is appointed executor and refuses to administer the estate according to the will (for example, refuses to sell a house the will directs to be sold), beneficiaries can petition the probate court to:

compel the executor to perform duties;
remove the executor for failing to perform or for breach of fiduciary duty; and
seek remedies such as appointment of a replacement administrator or turnover of estate property.

The probate court has authority to supervise fiduciaries, compel accounts, and impose sanctions when an executor breaches duties.

5. Consider surviving spouse statutory rights and exceptions

Georgia law provides statutory protections for surviving spouses (homestead allowances, family allowances, and sometimes an elective share) that can affect whether estate property can be sold or how proceeds are distributed. Those protections are separate from title issues and may give a surviving spouse an interest the court must recognize before sale proceeds are distributed.

Because these rights vary depending on the facts and the decedent’s estate plan, review the statutes and consult a probate attorney familiar with Georgia law (Title 53 and related statutes): https://law.justia.com/codes/georgia/2020/title-53/

6. Typical timeline and likely costs

Probate administration and obtaining court authority to sell can take months to over a year depending on estate complexity, creditor claims, and whether heirs contest the sale. Partition litigation can also take many months and includes filing fees, attorney fees, appraisals, and potential costs for the sale process. Negotiation or mediation often reduces time and expense.

When to involve an attorney

Title is unclear or the deed appears to transfer ownership outside probate.
The surviving spouse is obstructing administration or refusing to honor the executor’s duties.
There are competing claims (creditors, homestead, life estate, or elective share claims).
Litigation (partition or removal of executor) seems likely.

An attorney can review deeds, the will, and statutory rights, prepare probate filings or partition petitions, and represent beneficiaries in court.

Helpful Hints

Get the deed and title report first: ownership determines the path forward.
Open probate quickly if the decedent’s estate includes assets that must pass under the will.
Ask the probate court for written authorization before selling estate real property; acting without authority can create liability for the executor.
Check for homestead, life estate, or other statutory spouse protections that may prevent immediate sale.
Consider mediation or buyout offers before starting a partition action — litigation is expensive and slow.
Keep careful records and copies of the will, deed, death certificate, mortgage, insurance, and communications with the spouse.
Speak with a Georgia probate or real property attorney early — many offer initial consultations to assess whether probate, partition, or another remedy is appropriate.

Relevant Georgia code resources (general):

Georgia statutes on wills, trusts, and estates (Title 53): https://law.justia.com/codes/georgia/2020/title-53/
Georgia statutes on property (Title 44), including partition and remedies: https://law.justia.com/codes/georgia/2020/title-44/
Georgia courts and probate information (for locating local probate court and procedures): https://georgiacourts.gov/

Practical example (hypothetical): Imagine a decedent’s will instructs sale of the family home and equal distribution of proceeds among three children. The deed, however, names the decedent and surviving spouse as joint tenants with right of survivorship. Because title passed to the spouse automatically, the will cannot force immediate sale. The three children could negotiate a buyout with the spouse or file a partition action to force sale and distribute proceeds among the legal owners. If instead the house was solely in the decedent’s name, the executor could open probate, petition the probate court for sale authority, and after court approval sell the property and distribute proceeds per the will.

Takeaway: Whether you can force a sale depends on how the property is titled and what statutory rights the surviving spouse has. If the house is estate property, the probate process gives the executor a clear path to seek court approval for sale. If the spouse owns the house by operation of law, you will likely need negotiation or a partition action to obtain a sale.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It summarizes common Georgia procedures and issues but cannot substitute for an attorney’s review of the specific facts. Consult a licensed Georgia attorney to discuss your situation.