Massachusetts: Forcing a Spouse to Sell a House and Distribute Estate Proceeds

When a decedent’s will directs that a house be sold and the proceeds distributed, the person who carries out those instructions is normally the personal representative (executor or administrator). In Massachusetts, the route to force a sale depends on who controls title, whether the estate is opened in Probate and Family Court, and whether the surviving spouse has statutory rights (for example homestead, family allowance, or an elective share). Below is a plain-language roadmap of how the process usually works and what legal steps you can take if a surviving spouse resists.

Who has authority to sell the house?

If the decedent owned the house in their name at death and the will nominates a personal representative, that personal representative must probate the will and obtain formal authority from the Probate and Family Court (letters testamentary or letters of administration). Once the court issues letters, the personal representative can act on behalf of the estate, which generally includes asking the court to approve sale of estate real estate if necessary.

Common situations and how they change the approach

• House titled only in decedent’s name: The personal representative, after probate, can petition the court to sell the real estate and distribute proceeds according to the will.
• House held jointly (joint tenancy or tenancy by entirety): Joint ownership often passes outside the will to the surviving co-owner. If the spouse is a joint owner, the will’s direction to sell may not control that portion that passed by right of survivorship; you may need a partition action or negotiation.
• House passed to spouse by the will (spouse is devisee): If the will gives the house to the spouse but also directs sale, the spouse should cooperate. If the spouse refuses, the personal representative can seek the court’s help to carry out the will.
• Spouse claims homestead, family allowance, or an elective share: These statutory rights can limit or change how much of the estate’s cash proceeds pass under the will. Expect the court to consider those claims before full distribution.

Practical steps to compel a sale and distribution

1. Open probate (if not already open). File the will and petition the Probate and Family Court to appoint a personal representative. The Probate Court’s rules and procedures apply. See the Massachusetts Probate and Family Court information: Massachusetts Probate and Family Court.
2. Obtain letters testamentary or letters of administration. These documents give the representative legal authority to manage estate assets and to ask the court to sell estate property.
3. Give required notices. Massachusetts law and court practice require notice to heirs, beneficiaries, and known creditors. The court will expect appropriate notice before approving a sale or distributions.
4. File a petition to sell real estate or for instructions. If the will directs sale but the spouse refuses, the personal representative can petition the Probate Court for authority to sell estate real estate and for instructions about distribution. If that petition is granted, the court issues an order authorizing the sale and directing how proceeds are handled.
5. If title is held jointly, consider a partition action or negotiation. A partition action (normally in the appropriate civil court) asks the court to divide or sell property held by co-owners. If the spouse is a co-owner who refuses to cooperate, a partition action may be needed to force a sale of the undivided property interest.
6. Address spouse’s statutory claims before final distribution. Massachusetts gives surviving spouses certain protections that can affect net proceeds. The Probate Court will resolve or preserve those claims before distributing sale proceeds.
7. If the spouse improperly took or is withholding estate property, ask the court for remedies. Remedies can include orders to return property, an accounting, contempt sanctions for refusal to obey court orders, and damages for conversion in appropriate cases.

Timing, cost, and realistic expectations

Litigation to force a sale can take months and involves court filing fees, attorney fees, and possible appraisal and closing costs. Courts balance beneficiaries’ rights, creditor claims, and the surviving spouse’s statutory protections. Often parties reach a negotiated resolution or the court approves a sale order with conditioned distributions (for example, setting aside funds to satisfy a spouse’s allowance or elective-share claim).

Where to look in Massachusetts law

The Massachusetts statutes governing probate and an executor’s duties are found in the state’s probate law (see the Massachusetts General Laws, Chapter 190B). Those statutes and the Probate Court’s local rules guide how personal representatives may administer estates and request court approval for sales and other actions: Mass. Gen. Laws Chapter 190B (Probate Code). For practical information on using the Probate and Family Court process, start with the state court’s page: Massachusetts Probate and Family Court.

When to get a lawyer

If the spouse resists, claims ownership by survivorship, asserts statutory rights, or the estate has complex assets or creditors, hiring a probate attorney is strongly recommended. An attorney can file the necessary petitions, prepare notices, and represent the estate in contested hearings or partition actions.

Helpful Hints

• Collect the original will, the decedent’s deed/title, and a certified copy of the death certificate before opening probate.
• Keep clear records of all communications about the house; the court may need evidence of refusal or interference.
• File for probate promptly—delay can complicate creditor deadlines and a spouse’s statutory claims.
• If you are the personal representative, don’t sell estate property without court authority when the will or law may require court approval.
• Explore mediation before lengthy litigation—courts often favor negotiated settlements that protect statutory spouse rights and save estate assets.
• Ask the court for temporary orders if the spouse’s actions risk wasting estate value (for example, unauthorized removal of fixtures or failure to maintain the property).
• Expect the court to resolve homestead or elective-share claims before final distribution; factor potential set‑asides into settlement talks.