What to do if a surviving spouse refuses to sell estate real property under the will (South Carolina)

This guide explains, under South Carolina law, the steps a personal representative (executor or administrator) and beneficiaries can take to carry out a will provision that directs the sale of a decedent’s house when a surviving spouse opposes the sale. It uses general, hypothetical facts and is written for readers with no legal background.

Detailed Answer

At a high level, the process depends on three core questions about the property:

• Who owns the house now (solely in the decedent’s name, jointly with the spouse, held in a trust, or by right of survivorship)?
• Does the will expressly direct a sale and distribution of proceeds?
• Does the surviving spouse have statutory rights (such as homestead or an elective share) that could limit the ability to force a sale?

Step-by-step approach:

1. Confirm how title is held. If the house was held jointly with right of survivorship or is owned in a trust that conveys the property outside probate, the will typically does not control that property. If title was solely in the decedent’s name, the house is likely part of the probate estate and the will’s directions matter.
2. Open probate and obtain authority to act. The person named in the will as personal representative (executor) should be appointed by the probate court and receive Letters Testamentary or Letters of Administration. Only a court-appointed personal representative has clear authority to sell estate real property under South Carolina probate procedures. See South Carolina probate statutes: South Carolina Code, Title 62 (Wills, Probate, and Fiduciaries) for governing rules and procedures (code available at the South Carolina Legislature website: https://www.scstatehouse.gov/code/title62.php).
3. If the will directs sale, present the court order or will provision. Many wills instruct the executor to sell real estate and distribute the proceeds. If the will already authorizes sale, the personal representative typically files a petition with the probate court to confirm authority to sell and to get any court approval required for the sale. The court can approve sale procedures and sale terms to ensure a fair process for beneficiaries.
4. If the spouse objects, determine if the spouse has a property interest that defeats the will direction.
   • If the spouse’s name is on title as a joint owner, the spouse may remain owner despite the will.
   • If the spouse has homestead or other statutory rights, those rights may need to be addressed before a sale. South Carolina recognizes protections and elective rights for surviving spouses—your probate attorney or the probate court can explain how those rights apply in your case (see the South Carolina statutes at https://www.scstatehouse.gov/code/title62.php).
5. If the spouse is a co-owner but the property is an estate asset, consider a partition or court-ordered sale. If both the estate (through the personal representative) and the spouse are co-owners or claim interests, beneficiaries or the personal representative can ask the court either to partition the property (if partition in kind is infeasible) or to order sale and divide proceeds according to ownership interests. Partition actions are typically brought in civil court; the probate court may also have concurrent authority when the dispute concerns estate administration.
6. If the spouse refuses to cooperate, ask the probate court to enforce the will. A personal representative can file a petition asking the probate court to: (a) confirm the validity of the will, (b) confirm the personal representative’s authority to sell estate property, and (c) compel sale or order remedies to effectuate the will. The probate court can issue orders for sale and direct distribution of proceeds in accordance with the will and applicable statutory entitlements.
7. Use alternative dispute resolution when appropriate. If the surviving spouse objects because of fairness concerns, emotional attachment, or misunderstandings, mediation or neutral settlement discussions can resolve matters faster and at lower cost than prolonged litigation. Courts often encourage or require mediation in contested probate matters.
8. Be prepared for timelines, costs, and possible appeals. Compelling a sale through court may take months and involve court fees, attorney fees, appraisals, and other costs that reduce net proceeds. If a party appeals a probate order, the sale could be delayed further until the appeal resolves.

Practical outcomes you might expect:

• If title was solely in the decedent’s name and the will directs sale, a properly appointed personal representative can usually obtain court approval to sell and distribute proceeds even over a spouse’s objection—unless the spouse has a legal ownership interest or protected statutory entitlement.
• If the surviving spouse is a legal owner (e.g., joint tenancy), the will generally cannot force the spouse to sell.
• If the spouse has a statutory share or homestead rights, the court will enforce those rights before or during distribution of proceeds.

Relevant South Carolina resources

• South Carolina Code, Title 62 (Wills, Probate, and Fiduciaries): https://www.scstatehouse.gov/code/title62.php
• South Carolina Judicial Branch — Probate Court information and local procedures: https://www.sccourts.org/probate/

Helpful Hints

• Gather paperwork early: deed/title documents, the original will, death certificate, mortgage statements, and insurance policies.
• Check title before acting: a quick title search will reveal joint ownership, liens, or recorded conveyances that affect the estate’s control of the house.
• Confirm the named personal representative and get Letters before listing or negotiating sale.
• Get a professional appraisal and at least one broker opinion of value to demonstrate the reasonableness of sale price if the transaction is contested.
• Consider mediation if emotions run high—settlements can preserve value and speed distribution.
• Account for spouse protections: ask a probate attorney whether homestead, family allowance, or elective-share rules affect the sale or distribution.
• Budget for probate and litigation costs—these reduce the net proceeds available to beneficiaries.
• Contact your county probate court clerk to learn local filing procedures, required forms, and fees.

When to consult an attorney

If the spouse contests ownership, claims a statutory right, or refuses to vacate or cooperate, consult a South Carolina probate attorney promptly. An attorney can (1) confirm rights and likely outcomes under Title 62, (2) prepare and file petitions the court requires to obtain sale authority, and (3) represent the estate in partition or enforcement proceedings.

Disclaimer

This article is for general informational purposes only and is not legal advice. It does not create an attorney‑client relationship. For advice about a specific situation, contact a licensed South Carolina attorney who handles probate and real estate matters.