Can the estate force the sale of a house and distribute the proceeds under Maine law?
Short answer: Possibly — but it depends on who holds title to the property, what the will says, and whether Maine statutory protections (like homestead or spouse’s allowances) apply. If the house is solely owned by the decedent and the will gives the personal representative authority to sell, the personal representative (or the court) can usually sell the house and distribute the proceeds. If the surviving spouse holds an ownership interest or statutory rights, the process is different and may require a probate petition, a partition action, or litigation to resolve competing claims.
Detailed answer: key concepts and step-by-step actions
1. Identify ownership and title
Start by checking the deed and any recorded documents. Common scenarios:
- Sole ownership in decedent’s name — the property is estate property and passes under the will (subject to homestead/allowance claims).
- Joint tenancy or tenancy by the entirety with right of survivorship — property may pass automatically to the surviving spouse outside probate.
- Tenancy in common — the decedent’s share is part of the estate and can be sold or partitioned.
- Mortgages, liens, or creditor claims — these must be addressed before distribution.
Knowing the title determines whether probate is required and which legal steps will work.
2. Is the will clear about sale authority?
If the will appoints a personal representative and expressly authorizes sale of real estate, the personal representative can generally sell estate real property. If the will is silent, many personal representatives still have statutory or common-law authority to sell after court approval. Where authority is unclear, the personal representative should seek court approval before selling.
3. Open probate and get appointment of a personal representative
If the estate has not been opened, file the will and a petition for probate in the appropriate Maine probate court. Once a personal representative (often called an executor or administrator) is appointed, that person has the power to collect assets and, with either the will’s grant or court approval, sell estate property.
Resources and forms from the Maine Judicial Branch (probate self-help): https://www.courts.maine.gov/selfhelp/probate/. Maine statutes and the full text of state law: https://legislature.maine.gov/statutes/.
4. If the surviving spouse is refusing to cooperate
Different remedies apply depending on the spouse’s legal position:
- Spouse is not on title and has no statutory homestead or elective-share claim: The personal representative can petition the probate court for authority to sell. If the spouse obstructs access to the property, the court can issue orders (including temporary relief) to allow the estate to secure and sell the property.
- Spouse is on title as tenant in common: The estate (or co-owner) may bring a civil partition action in court. The court can order physical partition or, more commonly, order a sale and divide the proceeds according to ownership shares.
- Spouse is on title by right of survivorship or tenancy by the entirety: The property may have passed automatically to the spouse and may no longer be part of the estate. The estate cannot force a sale of property that is no longer estate property, although the will or other claims (e.g., undue influence, fraud, or a successful challenge to the transfer) could change that.
- Spouse claims statutory rights (homestead, family allowance, or elective share): These rights can limit sale or affect distribution. The probate court resolves those claims and sets allowances or shares before distributing estate assets.
5. Common legal steps to compel sale or distribution
- File a probate petition and ask the court to appoint a personal representative if none exists.
- If the will or statute permits sale, ask the probate court for an order approving sale (a Petition for Authority to Sell Real Estate in Probate).
- If the spouse holds part ownership and refuses to sell, file a partition action in civil court to force sale and division of proceeds.
- If the personal representative is obstructed by the spouse (for example, spouse refuses access, refuses to deliver keys or mortgage documents, or interferes), move the probate court for injunctive relief or a turnover order.
- If the spouse is the personal representative but is not acting in the estate’s best interests (refusing to sell, mismanaging assets), petition for removal of the personal representative for breach of fiduciary duty and ask the court to appoint a neutral representative to sell the property and distribute proceeds.
6. Consider homestead, allowances, and spouse’s elective shares
Maine law provides protections that can affect forced sales:
- Homestead/exemption and family allowances may give a surviving spouse a right to remain in the residence or claim property value before distribution to beneficiaries.
- Elective share laws or statutory spousal allowances allow a surviving spouse to claim an amount or percentage of the estate instead of accepting the will’s terms; such claims alter how net proceeds are divided.
These rights can reduce the amount available to distribute to other beneficiaries and sometimes require the court to delay or adjust a sale.
7. Practical timeline and costs
Probate and related court actions (sale authorization, partition, or a removal action) can take months to over a year depending on complexity, title issues, creditor claims, contested matters, and court schedules. Expect costs for court filing fees, attorney fees, appraisal, title work, and closing costs; these typically come out of estate funds before distributions.
When to hire an attorney
Because questions about title, homestead rights, spouse’s statutory claims, and fiduciary misconduct can be legally and factually complex, consult a Maine probate or real estate litigation attorney if:
- The spouse is on title or claims a statutory right (homestead or elective share).
- The spouse is the personal representative and refuses to act.
- There are creditor claims, mortgages, or potential challenges to the will.
- You need to file a partition action or request court authority to sell estate property.
An attorney can draft petitions, represent you at hearings, negotiate buyouts or settlement, and help protect your rights and the estate’s assets.
Relevant Maine government resources
- Probate information and forms — Maine Judicial Branch, Probate Self-Help: https://www.courts.maine.gov/selfhelp/probate/
- Maine Revised Statutes and searchable code: https://legislature.maine.gov/statutes/
Disclaimer: This article is for general information only and does not constitute legal advice. I am not a lawyer. For advice about your specific situation in Maine, consult a licensed Maine attorney who practices probate and real estate law.
Helpful Hints
- Gather key documents immediately: the will, death certificate, deed, mortgage statements, tax records, insurance policies, and recent utility bills.
- Check the county land records early to confirm who holds title.
- Ask the probate court clerk for local forms and procedure; each county may have specific steps.
- Consider negotiating a buyout with the spouse to avoid litigation — an appraisal and written offer can speed resolution.
- Preserve evidence: keep records of communications, attempts to gain access, and any interference with estate administration.
- Remember tax consequences: selling the house through the estate can have different capital gains treatment (step-up in basis) than a sale by an inheriting co-owner; get tax advice.
- If timely sale is important (to pay debts or prevent waste), ask the court for expedited or temporary relief — courts can act quickly in urgent situations.
- Keep an inventory and accounting of estate assets; transparency reduces disputes.