Detailed Answer

Short answer: If the decedent’s will directs that real property be sold and the estate goes through probate in Montana, the personal representative (executor) can ask the probate court for authority to sell the house and deposit the sale proceeds into the estate for distribution according to the will. But the surviving spouse may have statutory protections (homestead, exempt property, family allowance, and possibly an elective share) that can reduce or change what is distributed. Whether you can force a sale depends first on how title is held (sole owner, joint tenancy, survivorship, etc.) and then on the probate court’s orders after notice and any hearing.

Disclaimer: This is general information and not legal advice. Consult a Montana probate attorney about the specific facts of your case.

Step-by-step explanation (what usually happens in Montana)

1. Check how the house is titled.

   If the house was owned with a right of survivorship (joint tenancy or other survivorship deed), the property usually passes outside probate to the surviving owner and a will cannot force its sale. If the decedent owned the house solely (or the decedent’s share is part of the probate estate), the will’s directions are relevant to the probate estate.

2. Open probate and get appointed as personal representative (or confirm the court-appointed representative).

   The person named in the will (or an interested person) must file a petition in the appropriate Montana district court to admit the will and appoint a personal representative. Once appointed and qualified, the representative has duties and powers to manage estate assets subject to court supervision. For Montana probate statutes and procedures, see Montana Code Title 72 (Probate): https://leg.mt.gov/bills/mca/title_72/

3. Ask the court for authority to sell the real property.

   Most probate codes (including Montana’s) allow a personal representative to sell estate property, but sales of real property typically require either specific authority in the will or an order from the court after notice to interested parties. The representative files a petition to sell, provides notice to heirs and devisees (including the surviving spouse), and the court may hold a hearing if someone objects. The court can approve a public sale (auction) or a private sale (often with overbid procedures or confirmation requirements).

4. Address the surviving spouse’s statutory rights.

   Under Montana law, a surviving spouse may claim:

   • Homestead or exempt property — certain value or items a surviving spouse can claim free from creditors and distribution.
   • Family allowance — a short-term allowance for support during administration.
   • An elective share or statutory share — if Montana law allows a spouse to take a statutory share instead of what the will gives, the spouse can elect to take that share rather than take under the will. Any claim under these rights will reduce what’s left for other devisees.

   The personal representative must give proper notice and allow the spouse to assert these claims in probate. See general Montana probate law at: https://leg.mt.gov/bills/mca/title_72/

5. If the spouse objects to sale or refuses to leave the house, the court decides.

   If the spouse objects (for example, claiming the homestead or that the will is invalid or the spouse has an ownership interest), the court will hold a hearing and resolve competing claims. If the court orders sale over an objection, the court’s order controls. If a spouse refuses to vacate after a lawful sale, the purchaser (or the estate, if proceeds are distributed) may ask the court for a writ of possession or other enforcement to remove occupants — but that may require a separate eviction or enforcement process under Montana law.

6. Distribute sale proceeds per court-approved plan, after paying debts and allowed spouse claims.

   The estate pays funeral costs, administration expenses, taxes and creditor claims, and any allowed spouse homestead/exempt/family-allowance or elective-share amounts. Remaining funds are distributed in the order set by the will and Montana law.

Common pitfalls and key points to check immediately

• Confirm title: if the deed names the spouse as joint tenant/owner, the house likely passes outside probate.
• Read the will carefully: does it specifically authorize the personal representative to sell real property? Specific authorization simplifies court approval.
• File probate promptly: waiting can complicate creditor claims and the spouse’s statutory claims.
• Provide statutory notice: failure to give proper notice to the spouse and other interested parties can delay sales and distributions.
• Expect objections: a surviving spouse frequently asserts homestead, exempt property, family allowance, or elective-share claims — those claims must be resolved before final distribution.

Simple hypothetical to illustrate the steps

Hypothetical facts: Decedent lived in a house titled solely in the decedent’s name. The decedent’s will directs the house be sold and proceeds split equally among the decedent’s two adult children. The surviving spouse lives in the house and refuses to vacate.

Typical path:

1. One child files the will with the district court and petitions to be personal representative.
2. After appointment, the personal representative inventories assets and notifies heirs and the spouse.
3. The personal representative petitions the court for authority to sell the house, gives statutory notice, and the spouse is given a chance to claim homestead, exempt property, or elect a statutory share.
4. If the spouse files a homestead claim, the court will determine how much of the proceeds (if any) belong to the spouse before distribution. If the court approves sale over any objections, the house is sold and proceeds are distributed after paying debts and allowed spouse claims.
5. If the spouse refuses to vacate after the sale, the buyer or the estate asks the court for assistance to obtain possession; that may require additional court steps or eviction procedures.

Where to look in Montana law

Montana’s probate statutes (Title 72) set out the probate process, personal representative duties, notice requirements, and procedures for selling estate property. You can read the Montana Code (Title 72) here: https://leg.mt.gov/bills/mca/title_72/. For property and deed issues (how title passes outside probate), see Montana Code Title 70 (Property): https://leg.mt.gov/bills/mca/title_70/.

When a will cannot force the sale

• If the home passed by survivorship (joint tenancy or a survivorship deed), the will cannot force sale of the spouse’s property interest.
• If the spouse has a recorded life estate or other recorded ownership interest, that interest limits the estate’s ability to sell the property free of the spouse’s rights.

Helpful Hints

• Gather documents: will, deed, title report, mortgage statements, insurance policies, and recent property tax bill.
• Confirm how title is vested (deed, joint tenancy, survivorship). A county clerk or title company can help.
• File probate quickly if the property is part of the probate estate; delays can let claims accrue or create creditor problems.
• Give formal written notice to the surviving spouse of probate filings and any petition to sell property; Montana courts enforce notice rules strictly.
• Keep written records of attempts to negotiate with the spouse — mediation is sometimes quicker and cheaper than litigation.
• Expect timelines: an uncontested court-authorized sale and distribution can take several months; contested matters (spouse claims or title disputes) can take a year or more.
• Budget for costs: probate filing fees, publication/notice costs, appraisal, real estate commissions (if approved by the court), and attorney fees.
• Hire a Montana probate attorney if the spouse objects, claims ownership, or if title is unclear — local counsel can file the necessary petitions and represent you at hearings.
• If you are the surviving spouse and are worried about losing your home, promptly assert any homestead, exempt-property, family allowance, or elective-share rights in the probate case.

If you want, provide more specific facts (how the deed is titled, what the will says, whether the spouse lives in the house, and whether an executor has been appointed), and I can outline the likely next legal steps and documents you will need to file in Montana.