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Short answer

If the deceased’s will directs the house be sold and the proceeds distributed, the usual path is to open probate, have the court appoint a personal representative (executor), and have that representative petition the probate court for authority to sell the real property. If the surviving spouse refuses to cooperate, the court can order the sale or, if the spouse claims ownership as a co‑owner, a civil partition action may force a sale. The spouse may also have statutory rights (homestead, family allowance, or elective share) that affect distribution — those rights must be addressed in probate before final distribution.

Detailed answer — step by step (South Dakota)

1. Confirm who legally owns the house

Start by learning how title was held immediately before death. Common possibilities:

• Deed in the decedent’s sole name — property is part of the probate estate.
• Titling as joint tenants with right of survivorship or in a transfer-on-death arrangement — the property may pass automatically to the joint owner or beneficiary outside probate.
• Title in both spouses’ names as tenants in common — the decedent’s share may pass under the will or by intestacy; the co‑owner spouse owns the other share.

Get a certified copy of the deed from the county register of deeds and a certified copy of the death certificate to verify whether the property goes through probate.

2. Open probate and get letters of appointment (if needed)

If the house is part of the decedent’s probate estate, someone (usually the named executor) must file the will and a petition to open probate in the county probate court to have the will admitted and a personal representative appointed. The personal representative holds the legal authority to manage estate property, but selling real estate normally requires court authority or compliance with the probate code.

South Dakota’s probate laws are in the state’s codified statutes (see Title 29A for probate and administration topics): South Dakota Codified Laws (Statutes). For probate procedures and representative powers, consult the probate title on the legislative site and the state judicial branch’s probate resources: South Dakota Unified Judicial System.

3. Petition the probate court for authority to sell the real property

When the will directs sale, the personal representative typically files a petition or motion with the probate court asking for an order that:

• authorizes public sale (or private sale on terms approved by the court),
• approves the sale price or sets procedures for sale (listing, notice, bidding), and
• directs how sale proceeds will be held and ultimately distributed after debts, taxes, liens, and statutory allowances are paid.

The court will provide notice to interested persons (heirs, devisees, creditors, and spouses) and hold a hearing if objections arise. After approval, the sale proceeds are deposited to the estate’s account and distributed according to the will, subject to creditor claims and statutory family allowances.

4. Understand the surviving spouse’s statutory rights

A surviving spouse may have statutory rights that affect a forced sale or distribution. Typical rights include:

• Homestead or exemption claims that protect a portion of the family dwelling from creditors or sale in some circumstances;
• A family allowance (short-term support while probate is pending); and
• An elective share or forced share in the estate (a statutory right to claim a portion of the estate rather than accepting the will), which can reduce what is available for distribution per the will.

These rights are handled during probate and can either block distribution until resolved or change distribution amounts. See the South Dakota statutes and the probate rules for how spousal allowances and claims are made — start at the South Dakota statutes page: https://sdlegislature.gov/Statutes/Codified_Laws, and the state courts’ probate information at https://ujs.sd.gov.

5. If the spouse refuses to cooperate: contested probate or partition

Two common scenarios where the spouse objects:

1. The spouse is not a title owner but objects to the sale or claims a statutory right. In that case, the personal representative asks the probate court to resolve the objection — the court can rule on the spouse’s claim and order sale and distribution consistent with the will and statutory rights.
2. The spouse is a co‑owner (for example, tenant in common) and refuses to consent to a sale of the decedent’s share. If the non‑probate route is needed, a partition action in circuit court can force a sale of co‑owned property and divide the proceeds among owners according to ownership shares.

Either path requires filing a formal motion or complaint, providing notice to interested parties, and attending a hearing. The court may appoint a referee or direct a broker/auction and set terms for distribution.

6. Pay liens, mortgages, taxes, and creditor claims first

Before net sale proceeds go to beneficiaries, the estate must pay valid claims and liens against the property (mortgage loans, unpaid property taxes, funeral expenses, valid creditor claims). The personal representative must follow probate notice rules and allow time for creditor claims to be made or barred. The timing of sale and distribution depends on resolving these priorities.

7. Practical outcome and timeline

Probate timeline varies. A simple uncontested administration with a court‑approved sale might take a few months. Contested matters (spousal claims, partition, creditor disputes) often take longer and increase costs. Courts expect personal representatives to act in the estate’s best interest and to follow statutory notice and accounting duties.

Helpful hints

• Collect and organize documents: the original will, certified death certificate, deed, mortgage and tax statements, insurance, and a list of known heirs and creditors.
• Check the public title record immediately to confirm how the house is titled.
• Open probate in the county where the decedent lived as soon as possible if the house is in the probate estate.
• Ask the court for authority to sell before negotiating a sale; buyers want clear court approval or marketable title.
• If the spouse asserts a homestead or elective share, do not ignore the claim — it must be addressed in probate or it can derail distribution later.
• Consider getting a professional appraisal and use transparent sale procedures the court is likely to approve (broker listing, published notice, or public auction).
• Keep written records of all communications with the surviving spouse and other interested parties (dates, content, and method of communication).
• Talk to an experienced South Dakota probate or estate attorney early if the spouse is hostile or if title is unclear — contested matters are technical and time sensitive.
• Use the South Dakota Unified Judicial System resources and local county probate court forms to understand filing requirements: https://ujs.sd.gov/Forms.