Detailed Answer

Short answer: In Texas you generally must open probate, determine the property’s legal classification (homestead, community, or separate), and then use the probate court’s procedures—through the personal representative or by filing a petition—to obtain authority to sell the house and distribute the proceeds consistent with the will. If the surviving spouse refuses, homestead and community-property rights can limit a forced sale; a court order may still be possible after resolving those rights.

Step-by-step process (plain language)

1. Start probate if it hasn’t already been opened.

   The will must be probated so a personal representative (executor or independent administrator) is appointed. The representative is the person who can act for the estate to marshal assets, pay debts, and distribute property under the will. See the Texas Estates Code (probate and administration procedures) for the statutory framework: Texas Estates Code.

2. Identify the house’s legal status.

   Texas law treats property as separate (owned by one spouse before marriage or by gift/inheritance), community (owned by the marital community), or homestead (a special protection that can apply to the residence). The classification controls who has the right to sell and whether a forced sale is permitted. Homestead has strong protections under the Texas Constitution: Tex. Const. art. XVI.

3. If the house is estate property and no homestead claim prevents sale:

   The personal representative can sell estate property to pay debts and carry out the will. If the will expressly directs a sale, the representative still must follow probate procedures (notice to heirs/creditors and court oversight when required). Independent administration (if granted) may allow the representative to sell without prior court approval; otherwise the representative petitions the court for an order authorizing a sale. See the Estates Code for independent administration rules: Texas Estates Code, Chapter 401.

4. If the surviving spouse refuses to cooperate:

   – If the spouse has a community-property interest, the spouse cannot be forced to sell their separate interest unless a court orders partition or sale. A partition action or a probate sale ordered by the court is the typical remedy.
   
   – If the spouse claims homestead protection and occupies the house, Texas law limits forced sale for many creditors and can protect the surviving spouse’s right to remain. The probate court must resolve homestead claims before authorizing a sale that affects a surviving spouse’s homestead rights. See constitutional homestead protections: Tex. Const. art. XVI.

5. File the right petition in probate court.

   If negotiation fails, the personal representative (or an heir) files a petition in the probate court seeking specific relief: an order authorizing sale, partition of real property, or a declaratory judgment resolving ownership and homestead/community-property claims. The court will give notice to interested parties (including the surviving spouse) and hold a hearing.

6. Possible court outcomes.
   • The court may authorize a sale and direct how proceeds are to be divided under the will and Texas property laws.
   • The court may order a partition (divide physical property if divisible) or a partition by sale if division in kind is impractical. This may be appropriate when multiple heirs or co-owners exist.
   • The court may protect a surviving spouse’s homestead rights, award a life estate, or require a buyout rather than forcing an immediate sale where homestead protections apply.
7. Distribute proceeds under the will and Texas law.

   After sale proceeds are collected, the personal representative follows the priority rules: pay funeral expenses, administration costs, creditor claims, and taxes, then distribute the balance according to the will. If the spouse has a legal share (community property or elective share in other states; in Texas the surviving spouse’s community interest and allowances are considered), those claims must be satisfied first. See the Estates Code for distribution and administration rules: Texas Estates Code.

Common complications in Texas

• Homestead protection is powerful in Texas and often prevents a forced sale that would displace a surviving spouse. The probate court must resolve homestead claims before ordering a sale (Tex. Const. art. XVI).
• Community-property rules mean the surviving spouse may own half of the house automatically if it was acquired during marriage, which affects who can force a sale.
• If the will attempts to dispose of property the decedent did not wholly own (for example, community property), the will’s directions may be limited by the spouse’s legal rights. The personal representative and court must sort out those competing claims.

Practical documents and steps to prepare

• Certified copy of the death certificate.
• Original will (if one exists).
• Title documents for the house (deed, mortgage statements).
• Documentation showing how the property was acquired (date of purchase, source of funds) to help determine separate vs. community property.
• List of heirs, potential creditors, and mortgage or lien holders.

When to hire an attorney

If the surviving spouse refuses to cooperate, or homestead or community-property claims are asserted, you should consult a probate or estate litigation attorney. An attorney can help you open probate, determine property classification, draft and file the necessary petitions (sale/partition/declaratory relief), represent you at hearings, and handle negotiations or buyout agreements.

Relevant Texas law (starting points)

Key resources to consult online:

• Texas Estates Code (probate, administration, sales of estate property, distribution rules): https://statutes.capitol.texas.gov/Docs/ES/htm/ES.HTM
• Texas Constitution, Article XVI — homestead protections: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.16.htm

Helpful Hints

• Do not try to sell or remove a spouse from the house on your own. Attempting a private sale or lockout can create liability and interfere with probate rights.
• Quickly determine whether the property is homestead or community. Homestead claims often need immediate attention because they can block sale or eviction.
• If you are the personal representative named in the will, gather documentation, open probate promptly, and consider asking for independent administration if you want authority to sell without repeated court approvals (in appropriate cases).
• If the surviving spouse wants to stay in the house, consider negotiated options: buyout of the spouse’s interest, a life-estate arrangement, or a deferred sale. Courts often prefer negotiated solutions where feasible.
• Expect timelines measured in months. Probate, notice to creditors, hearings, and possible appeals all take time; plan accordingly.
• Keep clear records of all communications, offers, and court filings. That documentation helps at hearings and if disputes escalate.

Disclaimer: This article provides general information about Texas law and is not legal advice. It does not create an attorney-client relationship. Laws change and facts matter. Speak with a licensed Texas probate or estate attorney to get advice tailored to your situation.