Detailed Answer

This section explains, in plain language, how the sale of a decedent’s house is handled in New Hampshire when the estate’s administration and the decedent’s will call for a sale and distribution of proceeds. It assumes you are a beneficiary under the will and that a spouse survives the decedent. This is an overview of common steps and legal options; it does not replace an attorney’s advice.

Step 1 — Confirm who actually owns the house

Before any court action, determine how title was held at death. Common possibilities:

• If title was in the decedent’s name alone at death, the house is generally a probate asset and can be handled through the probate process.
• If title was held jointly with the spouse with rights of survivorship or as tenants by the entirety, the property likely passed outside probate to the spouse automatically and cannot be forced into probate for sale simply because the will says so.
• If title was held as tenants in common, the decedent’s share is a probate asset and can be sold through the estate or partitioned.

Step 2 — Open probate and confirm the personal representative’s authority

If the house is a probate asset, the person named as personal representative (executor) in the will should open probate with the Probate Court in the county where the decedent lived. Once appointed and sworn, the personal representative has authority to manage estate property. If the named personal representative will not act, beneficiaries can petition the court to appoint someone else.

Step 3 — Personal representative’s power to sell and when court approval is needed

A personal representative normally has authority to sell estate real property to pay debts, expenses, or to effect distribution according to the will. In many situations the executor can sell after complying with applicable notice and appraisal requirements. If the will directs sale, the executor should follow the will but may still need the court’s express approval depending on disputes or the terms of the will. If the surviving spouse objects, the executor can petition the Probate Court for an order authorizing a sale.

Step 4 — If the surviving spouse claims ownership or refuses to surrender possession

Options depend on title and facts:

• If the spouse is the sole owner by operation of law (e.g., survivorship), probate remedies cannot force sale of non-probate property. The beneficiaries’ recourse is limited — often to challenging the title transfer (if there is a valid legal challenge) or negotiating with the spouse.
• If the house is a probate asset but the spouse occupies it and refuses to leave, the executor can ask the Probate Court for an order allowing sale and for instructions about possession. If the spouse claims a statutory right (homestead allowance, allowance for support, or an elective share), the court will consider those claims before final distribution.
• If the house is co-owned as tenants in common, the estate (through the executor) may be able to seek partition (a court-ordered sale or division) to force sale of the property.

Step 5 — Court petition to compel a sale and distribute proceeds

If reasonable negotiation fails, the executor or an interested beneficiary may file a petition in Probate Court requesting:

1. Authority to sell the real estate (if the will or executor’s authority is disputed);
2. An order resolving claims by the surviving spouse (including homestead, allowances, or elective share claims); and
3. An order directing distribution of net proceeds according to the will after payment of debts, expenses, and allowed claims.

The court will schedule notice and possibly a hearing. The judge will decide based on the will, statutory rights of the spouse, property title, and any competing claims.

Step 6 — If the executor refuses to act

Beneficiaries can petition the Probate Court to compel the executor to perform duties, to account for estate actions, or to remove the executor for cause and appoint a successor.

Timing and practical steps

• Gather key documents: original will, death certificate, deed, mortgage statements, tax bills, insurance policies, and a list of creditors.
• Open probate promptly to preserve deadlines and protect estate assets.
• If the property has liens, mortgages, or unpaid taxes, those must be addressed out of sale proceeds prior to distribution.
• Expect the probate sale process and challenges to take months; complex disputes can take longer.

Common legal defenses a spouse might assert

• Property passed outside probate by right of survivorship or transfer on death instrument.
• Statutory spouse protections such as an allowance, homestead right, or elective share (state law may provide the spouse with a portion of the estate regardless of the will).
• Claims that the will is invalid or that the sale contradicts marital property arrangements.

When to consult counsel

If you face any of the following, contact a probate attorney experienced in New Hampshire estate matters:

• Title is disputed or shows joint ownership with the spouse.
• The surviving spouse asserts statutory claims (elective share, homestead, or allowance).
• The executor refuses to act or the estate faces creditor claims or tax issues.
• A quick or forced sale is necessary to preserve estate value.

Helpful statutory and local resources: For general information on probate procedures and forms, consult the New Hampshire Judicial Branch probate pages and the probate court for the county where the decedent lived. Local probate clerks can identify filing procedures and required forms.

Disclaimer: This is general information only and not legal advice. It does not create an attorney-client relationship. Laws change and every case turns on its facts. For advice about your specific situation, consult a licensed New Hampshire probate attorney.

Helpful Hints

• Confirm deed language and ownership before assuming the house is a probate asset.
• Open probate early. Delays can complicate creditor claims and estate administration.
• Keep detailed records of all communications with the surviving spouse and any estate actions.
• Routinely check mortgage, tax, and insurance status to avoid liens or loss of property value.
• If the will directs a sale, present that provision to the probate judge — but be prepared to address the spouse’s statutory claims.
• Consider mediation if the surviving spouse resists and family relationships matter; court fights are costly and slow.
• If you are a beneficiary and the executor is inactive, you may petition the court to compel action or to remove the executor.
• Keep expectations realistic: property that passed outside probate generally cannot be reclaimed through probate alone.