Detailed Answer

Short answer: If a decedent’s will directs that the home be sold and the proceeds distributed, you generally must open probate, obtain authority for the personal representative (executor) to administer the estate, and—if the surviving spouse refuses to cooperate—ask a Delaware probate court to order sale or use a partition/ejectment action if appropriate. Delaware law gives the court tools to compel a sale, but the surviving spouse may have statutory rights (for example, homestead allowances or an elective share) that affect distribution. This article explains the common steps and legal concepts you should expect under Delaware law.

1) Confirm the basics: will, ownership, and surviving spouse’s legal interests

Start by collecting the original will and any deed or title documents for the house. The will alone does not transfer title to real estate. Title passes according to how the property is owned (sole ownership, joint tenancy with right of survivorship, tenancy by the entirety, community property, etc.).

Also verify whether the surviving spouse has statutory protections under Delaware law — for example, a homestead allowance, exempt property allowance, or the right to an elective share of the estate. These rights can change how much of the sale proceeds the spouse can claim. See Delaware’s probate and estate statutes in Title 12 of the Delaware Code for relevant rules: https://delcode.delaware.gov/title12/

2) Open probate and get authority to act as personal representative

If probate is not already open, a beneficiary or the nominated executor should file the will with the appropriate court to obtain appointment as personal representative. Only the personal representative (or an administrator appointed by the court) has the authority to sell estate property on behalf of the estate unless title passed outside probate mechanisms.

Resources on Delaware probate procedures are available from the Delaware Courts: https://courts.delaware.gov

3) Ask the court to authorize sale of the real estate

Once appointed, a personal representative should request court authorization to sell the real property if the will directs sale or if sale is necessary to pay debts or distribute assets. In many probate administrations courts grant executors or administrators the power to sell estate real property after notice to interested parties and, if required, a hearing.

If the spouse refuses to permit sale or will not vacate the property, the personal representative can file a petition in the probate court asking the court to order the sale and direct distribution of proceeds according to the will and applicable statutory claims. Point the court to the will’s language and proof of the need to liquidate the asset to satisfy estate distributions or debts.

4) If the spouse occupies the house or claims an ownership interest

Distinguish between (A) a spouse who only occupies the property as a beneficiary or spouse with no title interest, and (B) a spouse who has an ownership interest (for example, title in both names or a survivorship tenancy). If the spouse claims title, you will have to resolve title through the courts.

Where co-ownership exists, or a surviving spouse resists a sale, Delaware law provides remedies such as a partition action (to divide or sell property that has multiple owners) or ejectment/forcible entry and detainer actions (to remove an occupant who lacks a right to remain). For statutory material on property actions, see Title 25 of the Delaware Code: https://delcode.delaware.gov/title25/

5) Typical court remedies and outcomes

Probate court order authorizing the executor to sell the house and distribute proceeds after satisfying claims and statutory allowances.
Partition action forcing sale and division of proceeds among co-owners if the spouse holds title with others.
Ejectment or possession action to remove a spouse who has no legal right to possess the house after appointment of a personal representative and notice to vacate.
Settlement negotiations: the court often encourages or approves sales by agreement, frequently through listing with a real estate broker and public sale under court supervision.

6) Practical steps you should take now

Locate the original will and deed.
Determine whether probate has been opened and who is acting as personal representative.
If probate is not open, file the will with the appropriate Delaware court and seek appointment as personal representative (or get counsel to do so).
Have your personal representative petition the court for authority to sell estate real property if sale is required to carry out the will.
If the spouse occupies the home or claims ownership, determine whether a partition, ejectment, or other possessory action is appropriate and consider filing promptly to protect estate property.
Keep careful records of notices sent to the spouse and all attempts to negotiate a voluntary sale.

7) Timing, costs, and likely timeline

Expect several weeks to months to open probate and obtain letters testamentary. If the spouse cooperates, a sale can proceed like any other real estate sale. If litigation is required (partition, ejectment, or contested probate), the process may take many months and involve court fees, attorney fees, and possibly expert or appraisal costs. The court may require that sale proceeds be held in escrow or under the court’s supervision until all claims (creditors, statutory allowances, any elective share) are resolved.

8) When the surviving spouse may block a sale

A spouse who holds a legal ownership interest (for example, joint title or survivorship tenancy) can prevent a unilateral sale by an executor unless the court orders a partition or other remedy. Also, statutory spouse protections such as a homestead allowance or elective share may entitle the surviving spouse to funds from the estate, which affects net distributions even where the house is sold. Review Title 12 of the Delaware Code for statutes governing allowances and probate administration: https://delcode.delaware.gov/title12/

9) Hire counsel and consider mediation

Because rights can turn on fine facts—title language, will provisions, whether the spouse was given a life interest, and whether the spouse filed an election—you should consult a Delaware probate/real-estate litigation attorney. An attorney can file the necessary petitions, represent you in court, and evaluate settlement or mediation options. Courts often favor negotiated resolutions that avoid protracted litigation and preserve estate value.

Disclaimer

This information is educational only and not legal advice. It summarizes general Delaware procedures and concepts and does not reflect all possible facts or legal exceptions. For advice about your specific situation, consult a licensed Delaware attorney.

Helpful Hints

Get the original will and the deed before doing anything. Those documents control the next steps.
Act quickly to open probate. Delay can complicate creditor claims and occupancy disputes.
Document every communication with the surviving spouse. Courts notice clear records of attempts to resolve matters informally.
Check whether title passed outside probate (joint tenancy, beneficiary deed, survivorship). If so, the property may not be estate property subject to sale by the executor.
Ask the court for a supervised sale if the beneficiaries worry about fairness or if the spouse resists—supervised sales reduce claims of impropriety.
Consider mediation before litigating. A mediated sale often costs less and closes faster than a contested court order.
Remember statutory spouse protections (homestead, elective share) that can change distribution—factor them into any proposed settlement or court petition.
Preserve property value: secure the property, maintain insurance, and prevent waste while the estate is being resolved.
Use official Delaware resources for statutes and court procedures: Delaware Code (Title 12 for estates and Title 25 for property): https://delcode.delaware.gov/title12/ and https://delcode.delaware.gov/title25/