Quick overview

If someone dies and their will directs that the house be sold and proceeds distributed, but the surviving spouse will not cooperate, the path forward depends on how the house is owned (sole title, joint tenancy, tenancy by the entirety, or through the deceased’s estate). Maryland law gives surviving spouses certain protections (family allowance, homestead/elective-share concepts) and gives executors and beneficiaries tools to ask the probate court to enforce a will. This article explains the practical steps you can take, what legal doctrines matter in Maryland, and when to get a probate/real-estate attorney involved.

Key legal concepts to understand in Maryland

• Ownership vs. probate disposition: Only property owned by the decedent (probate property) passes under a will. Jointly-owned property with right of survivorship or tenancy by the entirety often passes automatically to the survivor and is not controlled by the will.
• Tenancy by the entirety: In Maryland, real estate owned by a married couple as tenants by the entirety becomes the surviving spouse’s property at death and typically is not subject to sale under the decedent’s will.
• Homestead and statutory allowances: Maryland law provides certain protections for a surviving spouse (e.g., family allowance, homestead allowance, and elective share concepts) that may limit the decedent’s ability to immediately force sale and distribution. These protections are part of Maryland probate law and are administered in probate/Orphans’ Court proceedings. See Maryland’s probate resources for more information: Maryland Courts — Wills & Estates and general Maryland Code resources: Maryland Code — Estates & Trusts (Maryland General Assembly).

Step-by-step actions to compel sale and distribution

1. Identify how title is held.

   Obtain a copy of the property deed from the county land records or the decedent’s files. If the decedent owned the house solely in their name, it is likely probate property. If the property was owned jointly with right of survivorship or as tenants by the entirety, the spouse may already own the property outright outside probate and a will cannot force a sale of that nonprobate property.

2. Open probate (if not already opened) and confirm who is the personal representative/executor.

   If the estate is in probate, the executor (named in the will or appointed by the Register of Wills/Orphans’ Court) has authority to administer estate assets, which can include selling real property if permitted by the will or approved by the court. If no one has opened probate, beneficiaries can petition the Register of Wills to open a probate estate and ask for an executor’s appointment. Maryland probate resources: Maryland Registers of Wills.

3. Ask the executor to act (or ask the court to order action).

   If the executor has authority under the will to sell the home, ask them to begin a sale. If the executor refuses or the surviving spouse (who is not the executor) is occupying the home and refuses to vacate, beneficiaries can ask the Orphans’ Court/Register of Wills to issue instructions, compel an accounting, order a sale, or remove an executor who fails to perform. The probate court can authorize sale of estate real property to pay debts or to distribute proceeds to beneficiaries.

4. File a petition in Orphans’ Court (probate court) if needed.

   Beneficiaries or the executor can petition the Orphans’ Court/ Register of Wills for a range of remedies: order sale of estate real property, approval of a proposed sale, partition and sale (if property is held as tenants in common), or instructions about distributing proceeds. The court balances creditors’ rights, family allowances, and statutory spouse protections before ordering a sale.

5. Determine whether the surviving spouse has a statutory right that prevents immediate sale.

   A surviving spouse may be entitled to a family allowance, homestead allowance, or elective share which can affect how quickly and how much of the proceeds are distributed. The probate court will consider these rights before approving distribution. If the surviving spouse claims such rights, the executor or beneficiaries may need to resolve those claims in court before distributing sale proceeds.

6. If title is nonprobate (joint tenancy or tenancy by the entirety), explore other remedies.

   When the house passed automatically to the spouse by operation of law (for example, tenancy by the entirety), the will cannot override that transfer. In such cases beneficiaries may:

   • Negotiate with the surviving spouse for a buyout or voluntary sale.
   • If there is evidence of fraud or improper transfers made to defeat the decedent’s intent, consult an attorney about a civil claim to set aside the transfer.
7. Consider a partition action if the decedent and a non-spouse co-owned the property as tenants in common.

   If the decedent owned the property as a tenant in common with another person (not the spouse) who refuses to sell, a partition action in the Circuit Court can force sale and distribution of proceeds. Partition is not the same as probate sale; it is a civil court action for co-owners.

8. Gather documents and evidence you will need.

   Prepare the will, death certificate, deed, mortgage statements, insurance, tax records, and any correspondence about the decedent’s intent. This helps the executor and the court decide whether a sale is appropriate and how proceeds should be distributed.

9. Hire a Maryland probate and real-estate attorney when appropriate.

   If the surviving spouse resists, if title issues are complex, or if statutory spouse protections are asserted, a lawyer with experience in Maryland probate and real property can file the correct petitions, represent beneficiaries in Orphans’ Court or circuit court, and advise about settlement vs. litigation.

Common factual scenarios and likely outcomes

• Decedent owned the home alone and left the house in the will to be sold and proceeds split:

  This is classic probate property. The executor can petition the probate court to sell the house to pay debts and distribute remaining proceeds to beneficiaries, subject to any spouse allowances or claims.

• Home titled as tenancy by the entirety to the married couple:

  The surviving spouse likely owns the home outright. The will cannot force sale. Beneficiaries must negotiate or investigate whether the decedent legitimately severed title before death (which could be set aside if fraudulent).

• Surviving spouse refuses to cooperate while claiming a homestead or family allowance:

  The court will consider the spouse’s claim and may allow the spouse to remain in the home for a period or take an allowance from the estate. After resolving those claims, the court may order a sale if consistent with the will and creditors’ rights.

Helpful hints

• Confirm how the property is titled before taking steps. Title determines whether probate even controls the asset.
• Open probate promptly if you are a beneficiary and the estate is not yet administered. Delay can harm claims and complicate creditor payment.
• Collect key documents: deed, will, death certificate, mortgage, insurance, tax statements, and any statements indicating the decedent’s intent.
• Try negotiation or mediation first—court is often slow and expensive.
• If litigation seems likely, get an attorney who handles both Maryland probate and real-estate law; those skills often overlap in these disputes.
• Expect the court to consider a surviving spouse’s statutory protections; these can change the timing and distribution of sale proceeds.
• Check the county land records and the Register of Wills office in the county where the decedent lived for record copies and guidance: Maryland Registers of Wills.