Overview

This article explains how a personal representative or beneficiary can seek to have real property sold and the sale proceeds distributed according to a decedent’s will under Hawaii law. It walks through the typical legal steps, the common obstacles (including a surviving spouse who refuses to cooperate), and practical options to resolve the situation. This is educational information only and not legal advice.

Detailed answer — how the process works in Hawaii

1. Confirm who holds legal title and what the will says

Start by checking the deed for the house and the decedent’s will. Important questions:

• Was the house owned solely in the decedent’s name, jointly with the spouse (joint tenancy or tenancy by entirety), or transferred by beneficiary deed/transfer-on-death instrument?
• Does the will give the executor (personal representative) express authority to sell real property? Many wills include a power of sale for the personal representative.

If the house passed outside probate (for example, joint tenancy with right of survivorship or beneficiary deed), a will generally cannot force the sale—title may already belong to the surviving owner.

2. Open probate or determine if probate is required

If the house is part of the probate estate (titled only in decedent’s name or otherwise subject to probate), the will must be admitted to probate and a personal representative appointed. Under Hawaii probate law, the probate process gives the personal representative authority to collect estate assets, pay debts, and distribute the estate according to the will. See Hawaii Revised Statutes, chapter 560 (probate and administration): HRS chapter 560.

3. Personal representative’s authority to sell

If the will grants the personal representative a power of sale, the representative may be able to sell the house. If the will is silent, the personal representative generally must obtain court permission to sell estate real property as part of administration. The court issues letters testamentary or letters of administration, which the representative shows to brokers/title companies to proceed with a sale.

4. Surviving spouse’s rights that can affect a sale

A surviving spouse may have statutory protections that affect whether or how the house can be sold:

• Homestead or family allowance laws can protect a spouse’s right to remain in the home or claim a portion of the estate. Hawaii law addresses homestead matters that can delay or prevent a sale. See Hawaii Revised Statutes, chapter 508 (homestead): HRS chapter 508.
• An elective share, allowance, or other spousal claims (if applicable) must be resolved before full distribution.

Because these rights can be complex, the personal representative should identify any statutory claims early and provide proper notice to the spouse.

5. If the spouse refuses to cooperate

Common scenarios and responses:

• If the spouse is a co-owner (joint tenant or tenant by entirety): The spouse may own the property outright on the decedent’s death. The will cannot normally force a sale of jointly held property that passed by operation of law. The non-owner beneficiaries often must negotiate a buyout or seek judicial partition if state law and title permit.
• If the property is part of the probate estate and the spouse occupies the house: The personal representative may petition the probate court for authority to sell the property despite the spouse’s objections. The court will consider the spouse’s statutory rights (homestead, allowance, elective share) before granting authority to sell.
• If the spouse is interfering with administration (refuses access, refuses to vacate after a valid sale): The personal representative can ask the probate court for enforcement relief—orders compelling sale, orders requiring the spouse to vacate, or contempt/ejectment remedies depending on the circumstances.

6. Alternative or parallel remedies — partition and civil actions

If the spouse claims an ownership interest as co-owner, a partition action in the appropriate Hawaii circuit court can force sale and divide proceeds among owners according to their ownership shares. Partition law and procedure are governed by Hawaii civil procedure and common law. If the claim is that the spouse is wrongfully keeping sale proceeds or interfering with the estate, the personal representative can bring an accounting or other civil action.

7. Typical steps the personal representative or beneficiaries take

1. Confirm title, locate will, and determine whether probate is required.
2. Open probate and get appointed as personal representative (if not already done).
3. Notify interested persons and the surviving spouse per probate notice rules.
4. Identify and address any homestead/elective-share/allowance claims the spouse might have.
5. If needed, file a petition in probate court seeking authority to sell estate real property or to resolve disputes.
6. If the spouse is a co-owner outside probate, consider negotiations, a buyout, or a partition action in circuit court.

8. Timing, costs, and practical considerations

Probate proceedings and contested matters can take months to more than a year. Expect attorney fees, court costs, appraisal costs, and realtor commissions. If the estate is small, consider whether the cost of litigation will exceed the benefit. Sometimes a negotiated buyout or mediated settlement is faster and cheaper.

9. When to get a lawyer

If the spouse resists sale, claims homestead or ownership rights, or you face contested probate matters, consult a Hawaii probate attorney. A lawyer can:

• Explain whether the house is subject to probate
• File the probate paperwork and petitions
• Advise on homestead/elective-share claims
• File partition or enforcement actions if needed

For general probate information from the Hawaii Judiciary, see: Hawaii State Judiciary — Probate & Guardianship self-help.

Helpful Hints

• Gather the deed, the original will, any trust documents, mortgage statements, property tax records, and insurance policies before you speak with an attorney.
• Check the county property records to verify current legal title.
• If you are the personal representative, get and keep copies of all court-issued letters testamentary/administration; title companies and brokers will require them to proceed with a sale.
• Be aware of homestead and spousal allowance issues early—failure to give required notice can delay administration.
• Consider mediation to resolve a spouse’s refusal to sell. Courts often expect parties to try negotiation or mediation before long litigation.
• Document communications with the surviving spouse—dates, content of conversations, and any written notices.
• Ask your attorney about provisional remedies (temporary orders) if immediate action is necessary to protect estate assets.
• Keep beneficiaries informed. Transparent communication can reduce disputes that delay sales.

Key takeaways

If the house is part of the probate estate and the will directs sale, the personal representative generally can proceed through the probate process to sell the property, subject to the surviving spouse’s statutory rights (such as homestead or allowances). If the spouse holds title outside probate, the will cannot directly force a sale; you may need to negotiate, buyout, or file a partition action. Because these issues often involve overlapping probate and property law, consult a Hawaii probate or real property attorney to evaluate your specific facts.

Disclaimer: This article is for general informational purposes only and is not legal advice. For advice about your specific situation, consult a licensed Hawaii attorney.