Detailed Answer
Short answer: Whether a court can force a surviving spouse to sell the house and distribute the proceeds depends first on how the property is titled and second on the surviving spouse’s legal rights under New Jersey probate law. If the decedent owned the property outright (sole ownership) and left instructions in a valid will to sell and distribute proceeds, the personal representative (executor) appointed by the Surrogate’s Court generally can sell the property for the benefit of the estate. If the spouse owns the property by right of survivorship (joint tenants with right of survivorship or tenancy by the entirety), a sale cannot be forced based on the decedent’s will alone. When ownership is as tenants in common or the decedent’s will controls the decedent’s share, the estate (or other beneficiaries) can ask a court to partition or force a sale of the decedent’s share.
How to analyze the situation under New Jersey law
- Identify title: Check the deed. Common ownership arrangements are: sole ownership (in decedent’s name), joint tenancy with right of survivorship, tenancy by the entirety (married couples), or tenancy in common. Each arrangement determines what interest passed at death.
- If the house was sole property of the decedent: The decedent’s will controls the decedent’s real property that is probated. The personal representative (executor/administrator) has authority, subject to court approval, to sell estate real property to pay debts and distribute proceeds according to the will. To start, someone must open probate in the county Surrogate’s Court. See general NJ probate resources: NJ Courts – Wills & Estates and the NJ Surrogate’s information pages.
- If title is joint with right of survivorship or tenancy by the entirety: The surviving co-owner usually becomes sole owner automatically on death. A will cannot transfer jointly held property that passed by survivorship. A court typically will not force a sale based on the will alone. Review the deed and mortgage carefully and consult an attorney about options.
- If title is tenancy in common: The decedent’s percentage interest is part of the estate and the will may direct sale or distribution of that share. Co-owners (including the estate) can bring a partition action to divide or force sale of the property in Superior Court, Chancery Division.
- Spouse’s statutory rights: New Jersey statutes governing administration of estates (N.J.S.A. Title 3B) create allowances and protections for a surviving spouse (for example, family allowance, homestead allowance, and the elective share). Those rights may affect how much cash the spouse receives from a sale or from the estate’s assets. For background on the statutory framework, see the New Jersey statutes and Surrogate’s Court resources: New Jersey Legislature (Title 3B: Administration of Estates) and NJ Courts.
Typical court procedures to compel sale or enforce the will
- Open probate: File the will and a petition for probate with the county Surrogate’s Court. The court issues letters testamentary to the personal representative.
- Personal representative acts: The personal representative inventories estate assets, notifies creditors, and may petition the Surrogate’s Court for authority to sell real estate if needed to pay debts or implement the will.
- If the spouse is refusing to cooperate:
- If the spouse is occupying estate property but does not hold title by survivorship, the personal representative can ask the Surrogate’s Court for an order approving sale of estate property. If the spouse is obstructing the executor, the court can order compliance, compel the sale, or remove the personal representative and appoint a successor if necessary.
- If the spouse claims an ownership interest (e.g., survivorship), the personal representative or beneficiaries may need to litigate title in Superior Court or bring a partition action to divide or force sale of the property.
- Partition action: When co-owners cannot agree, a partition action in the Superior Court, Chancery Division, can divide the property or order its sale and distribution of proceeds among owners according to their shares. This is common when the decedent’s share survives and the surviving co-owner refuses to sell voluntarily.
- Court orders and distribution: After sale, the court-supervised distribution follows the will subject to the spouse’s statutory allowances and any claims against the estate. The Surrogate’s Court supervises estate administration and enforces statutory obligations.
Documents and evidence the court will want
- Original will and codicils
- Death certificate
- Deed and title documents
- Mortgage statements and liens
- Property tax bills and homeowner insurance
- Appraisals or broker price opinions
- Accounting of estate assets and debts
Practical timeline and costs
Probate opens quickly (weeks), but contested matters (title disputes, partition, forcing a sale) can take many months to over a year. Court fees, appraisal fees, broker commissions, attorney fees, and potential litigation costs reduce net proceeds. Mediation or settlement often saves time and money.
When to get legal help
If the spouse resists, claims title by survivorship, or asserts statutory rights, consult a New Jersey probate attorney. An attorney can:
- Review title and the will
- Advise whether the personal representative has authority to sell
- File petitions in Surrogate’s Court or Superior Court (partition, accounting, removal of executor)
- Negotiate settlements that preserve value and shorten delay
Relevant official resources
- NJ Courts — Wills, estates and probate resources: https://www.njcourts.gov/selfhelp/wills.html
- New Jersey Legislature — statutes and Title 3B (Administration of Estates): https://www.njleg.state.nj.us/
- County Surrogate offices (use the NJ Courts site to find your county Surrogate’s office page): https://www.njcourts.gov/
Bottom line: Start by confirming how title passed at death. If the property was solely in the decedent’s name, open probate and the personal representative can seek court approval to sell and distribute proceeds under the will. If the property passed by survivorship, a will cannot force a sale. If ownership is shared or contested, the estate or beneficiaries may need a partition action or other court relief in New Jersey courts to force a sale. Because these matters involve both title law and probate rules — and can trigger a spouse’s statutory protections — talk to an experienced New Jersey probate attorney early.
Disclaimer
This article explains general information about New Jersey law and options for enforcing a will regarding real property. It is educational only and not legal advice. Every case depends on specific facts. Consult a licensed New Jersey attorney to get advice tailored to your situation.
Helpful Hints
- First, obtain a certified copy of the death certificate and the original will.
- Check the deed immediately — ownership language (joint tenancy, tenancy by the entirety, tenancy in common) determines what passed at death.
- Open probate promptly with the county Surrogate to establish the executor’s authority.
- Document any refusals or interference by the spouse (written communications, denied access, etc.).
- Get a professional appraisal or broker price opinion before asking the court to approve a sale.
- Consider mediation or a negotiated buyout to avoid lengthy litigation and preserve cash value for beneficiaries.
- Keep the property insured and maintain mortgage and tax payments to prevent loss of value while disputes continue.
- Ask about the spouse’s statutory rights (homestead allowance, family allowance, elective share) before planning distributions.
- Retain a New Jersey probate attorney for contested matters — title issues and partition actions can be legally complex.