Arizona: Forcing Sale of a House and Distributing Proceeds Under a Will | Arizona Probate

Detailed Answer

This article explains, under Arizona law, how the probate system and property ownership rules affect a situation where a decedent’s will directs that real property be sold and the proceeds distributed, but the surviving spouse refuses to sell or claims an ownership interest. This is educational information only and not legal advice.

Key concepts you must understand

Title/ownership controls first: Whether the house is part of the probate estate depends on how title is held: sole ownership in the decedent’s name, joint tenancy with right of survivorship, community property with right of survivorship, tenancy in common, or if the house was already transferred to the surviving spouse (by deed, trust, or beneficiary designation).
Probate court authority: If the house is estate property subject to probate, the personal representative (executor) can ask the probate court for authority to sell estate real property to follow the will. Arizona’s probate statutes and local court rules govern that process (see Arizona Revised Statutes, Title 14: Trusts, Estates and Protective Proceedings: https://www.azleg.gov/arsDetail/?title=14).
Surviving spouse protections: Arizona law provides certain protections for a surviving spouse (homestead, family allowance, exempt property and other statutory rights). Those protections can limit the ability to force sale to satisfy estate debts or to override certain spouse rights. The Arizona courts’ self-help probate pages are a good general resource: https://www.azcourts.gov/selfservice/Probate.

Common ownership scenarios and what they mean

Joint tenancy with right of survivorship – If the decedent and spouse held title as joint tenants with right of survivorship, the property typically passes automatically to the surviving joint tenant and is not subject to probate. The will cannot force a sale of property that already passed outside probate by survivorship.
Community property with right of survivorship – Arizona is a community property state; if the house passed to the surviving spouse by operation of law (or right of survivorship designation), it is outside probate and the will’s direction cannot compel that transfer.
Sole title in decedent’s name – If title was solely in the decedent and the home is part of the probate estate, the personal representative can petition the probate court to sell estate real property to pay debts and to follow the will’s directions, subject to statutory spouse protections.
Tenancy in common or partial estate interest – If the decedent owned only a fractional interest, the estate may need a partition sale (often a civil action) or a probate sale of the estate’s share. A co-owner spouse may be able to buy out the estate’s interest rather than force a sale.

Practical steps to seek sale and distribution under a will

Confirm how title is held. Obtain the recorded deed and title report from the county recorder’s office to confirm whether the property is in probate. If title passed outside probate (survivorship rules, deed, trust), the probate court cannot force a sale.
Open probate (if not already opened). File a petition for probate in the county where the decedent lived. The court appoints a personal representative who administers the estate under court supervision. Court and procedural information: https://www.azcourts.gov/selfservice/Probate.
Personal representative seeks court authority to sell. If the property is estate property, the personal representative files a motion or inventory and account asking the court for authority to sell under the will. The court may issue an order permitting sale, subject to notice and any objections.
Address surviving spouse statutory claims. The surviving spouse may claim homestead, exempt property, or family allowance under Arizona statutes. The personal representative must give required notices and allow the spouse to assert statutory claims. These claims can reduce or delay sale proceeds available for distribution.
If spouse objects or refuses to cooperate: – If the objection is that title belongs to the spouse (survivorship or deed), provide recorded documents showing estate ownership. – If the objection is refusal to vacate, the probate court can order possession turned over to the personal representative if house is estate property. – If co-ownership prevents simple sale, seek a court-ordered partition or sale (may be in probate or civil court depending on circumstances).
Consider buyout, mediation, or temporary arrangements. A negotiated buyout, assignment of other assets, or short-term occupancy agreement can avoid costly litigation.

What the court will consider

The court balances statutory spouse protections, creditor claims, debts of the estate, and the testator’s directions in the will. The court typically requires notice to interested parties, an appraisal or evidence of value, and may order sale by public auction or private sale with confirmation. If the spouse asserts a statutory exemption or homestead, the court will resolve those claims before a final distribution.

When partition or civil litigation is required

If title shows co-ownership (tenancy in common) and the co-owner spouse won’t agree to a sale, the estate (or co-owner) can file a partition action in civil court seeking physical division or sale and division of proceeds. Partition actions are separate from probate in many cases and follow civil procedure. If ownership passed outside probate, a partition or quiet-title suit may be the only way to change ownership.

Practical checklist

Obtain the deed and title report from the county recorder.
Confirm whether the house is part of the probate estate or passed outside probate.
Open probate and be appointed personal representative, if necessary.
Give required statutory notices to the surviving spouse and other heirs.
File motions in probate court to sell estate real property and seek distribution of proceeds.
Respond to spouse claims (homestead, family allowance, exempt property) promptly.
Consider mediation, buyout, or short-term occupancy agreement to avoid litigation costs.

Where to find Arizona law and court resources

Arizona Revised Statutes, Title 14 — Trusts, Estates and Protective Proceedings: https://www.azleg.gov/arsDetail/?title=14
Arizona Courts’ self-service probate information: https://www.azcourts.gov/selfservice/Probate
County recorder’s office pages (for recorded deeds and title searches) — visit your county recorder’s website to pull the recorded deed and any survivorship declarations.

When to talk to an attorney

If the title is ambiguous, the surviving spouse claims homestead or other statutory rights, or parties cannot agree on sale or distribution, consult an Arizona probate or real property attorney. An attorney can help: prepare and file probate petitions, respond to spouse claims, seek court orders authorizing sale, or pursue partition actions when needed.

Helpful Hints

Act quickly: statutory deadlines, creditor claims, and notice periods can be time-sensitive in probate.
Get a title report early to determine whether probate applies.
Collect documentation: will, deed, trust documents, mortgage statements, appraisal, and tax records.
Keep communication civil: a negotiated settlement or buyout often saves time and litigation costs.
Consider temporary cash or relocation assistance to a surviving spouse rather than immediate forced sale, if that preserves family peace and value.
Be prepared for homestead or exempt-property claims that can delay sale and distribution.
Expect the court to require written appraisals or market evidence before approving a sale.
Remember tax consequences: sale of estate real property may have estate tax or capital gains implications — consult a tax professional if needed.

Disclaimer: This information is educational only and does not constitute legal advice. For advice about a specific situation, consult a licensed Arizona attorney who handles probate and real estate matters.