Kansas: How to Compel Sale of a House and Distribute Proceeds When a Spouse Refuses

Short summary: If a will directs that real estate be sold and the surviving spouse resists, the usual routes in Kansas are (1) probate the will and ask the probate court to authorize a sale and order distribution, (2) ask the court to remove or compel the personal representative (executor/administrator) who is not following the will, or (3) in limited situations pursue a partition or other civil action. Whether the court will force a sale depends on how title passed, whether the spouse holds homestead or exempt property rights or an elective share, and whether the will’s directions are lawful under Kansas law (K.S.A. Chapter 59).

Step-by-step approach under Kansas law

1. Confirm whether the estate is or must be probated.

   If the decedent left a will, the will should be submitted for probate in the appropriate Kansas district court so the court can appoint a personal representative and supervise distribution. See K.S.A. Chapter 59 for the statutes governing wills, probate administration, homestead, and exempt property: K.S.A. Chapter 59.

2. Determine how title to the house vests after death.

   If the decedent held title in joint tenancy with right of survivorship or the house was held in a trust or deeded to the spouse, the house may already belong to the surviving spouse and a court cannot force sale simply because the will directs it. If title passed to the estate (the will devised the house to the estate or to be sold), the personal representative has authority to administer the property subject to Kansas probate rules.

3. Check homestead, family allowance, and exempt property rights.

   Kansas law provides protections for a surviving spouse and minor children, such as homestead and exempt property allowances. Those rights can limit the estate’s ability to sell a primary residence to satisfy testamentary directions or pay creditors. Review the probate statutes and consult the court on how these rules apply: K.S.A. Chapter 59.

4. If the personal representative refuses to follow the will (or refuses to act), petition the probate court.

   The probate court can compel the personal representative to perform duties required by the will, to sell estate property if proper, or to account for administration. If the personal representative is acting contrary to the will or failing in duties, interested parties (beneficiaries, creditors) can ask the court to:

   • Order sale of estate property to carry out the testamentary plan;
   • Remove or surcharge the personal representative for breach of fiduciary duty;
   • Appoint a successor fiduciary if the current one refuses to act.

   These petition powers flow from the court’s general probate supervision under K.S.A. Chapter 59.

5. If the spouse holds title and refuses to cooperate, evaluate partition or other civil remedies.

   If the spouse owns legal title (alone or as tenant in common with others), beneficiaries may have a limited civil remedy such as a partition action to force sale and divide proceeds among co‑owners. Partition is a separate civil action in district court, and it applies only when multiple parties have an ownership interest entitled to division. If the spouse is sole owner, partition will not force sale simply because a will directed otherwise.

6. Use temporary tools to preserve estate property and value.

   Ask the probate court for temporary injunctive relief, turnover orders, or an order requiring the spouse to preserve the property pending formal proceedings. Courts may authorize a sale if necessary to pay creditors, taxes, or to effectuate the estate plan, subject to any spouse exemptions.

7. Consider negotiation, mediation, or settlement.

   Litigation can be costly. Many parties resolve disputes by negotiation (buyout of spouse interest), mediation, or structured settlement supervised by the probate court. The court will generally approve settlement agreements that fairly resolve competing claims.

8. Keep deadlines, evidence, and documentation ready.

   Gather the will, deed, title records, mortgage statements, property tax bills, communications with the spouse, and any appointment or refusal letters from the personal representative. File probation paperwork or civil complaints promptly to preserve rights and avoid statute-of-limitations issues.

What factors the Kansas court will consider

• Whether title passed to the surviving spouse by deed, tenancy, or operation of law.
• Whether the property is protected by Kansas homestead or exempt property rules for the surviving spouse or minor children (see K.S.A. Chapter 59).
• Whether the will expressly directs sale and whether that directive is lawful and administratively feasible.
• Whether the personal representative is following fiduciary duties and acting in good faith.
• Whether sale is necessary to pay debts, expenses, or to achieve equitable distribution among beneficiaries.

Where to file and who can ask the court for relief

Probate matters are handled in the Kansas district court where the decedent lived at death. Interested persons—beneficiaries named in the will, heirs, creditors, or the personal representative—can file petitions or motions in probate. Partition suits or civil claims against a spouse may be filed in district court as well. Kansas court information and probate resources are available from the Kansas Judicial Branch: Kansas Judicial Branch.

Realistic outcomes and timing

Outcomes vary. If the house vested in the estate or the personal representative follows the will, the court commonly authorizes sale and distribution after creditor claims and statutory allowances are addressed. If the surviving spouse has a homestead claim or took title by survivorship, the court may deny sale or require compensation. Probate and related litigation can take months to more than a year depending on complexity, objections, and appeals.

Practical next steps

1. Locate the original will and deed/title paperwork.
2. Confirm whether the will has been or must be probated; if not, file for probate in the Kansas district court for the decedent’s county.
3. Ask the personal representative if one has been appointed and whether they will follow the will’s sale direction.
4. If there is resistance, consult a Kansas probate attorney and consider filing a petition in probate court to compel action or request removal of the fiduciary.
5. If title is held jointly or by the spouse alone, assess partition or other civil remedies with counsel and evaluate homestead/exempt property claims.

Relevant Kansas statutory resources

Key statutory material is in K.S.A. Chapter 59 (wills, probate, homestead, exempt property, and administration). For starters, review: K.S.A. Chapter 59 — Wills and Administration (Kansas Statutes). For court procedures and local filings, see the Kansas Judicial Branch: Kansas Judicial Branch.

Disclaimer

This article is informational and educational only and is not legal advice. It summarizes general principles of Kansas probate and property practice. Individual matters turn on specific facts, and statutes, rules, and case law may change. Consult a licensed Kansas attorney about your situation before taking legal action.

Helpful Hints

• Ask the court for a protective order if you suspect the spouse might dissipate estate assets.
• Document every communication with the spouse and any executor about the house—dates, messages, and witnesses.
• Confirm whether the house is subject to mortgage or liens—creditor priorities may require sale to pay debts.
• Check whether the will specifically authorizes sale and sale procedures (e.g., realtor, auction, appraisal requirements).
• Get an estate attorney experienced in Kansas probate; many offer an initial consultation to review the will and title documents.
• Consider mediation to reach a buyout or agreement that avoids lengthy court fights.