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Detailed Answer

Short answer: Whether you can force a surviving spouse to sell a house and distribute the proceeds according to a will depends on who holds title, whether the property passed outside probate, and whether the spouse has statutory rights (for example, homestead, allowance, or an elective-share). In North Dakota the usual paths are (1) use the probate process to get a court order authorizing sale by the personal representative, or (2) if the spouse is a co-owner, bring a partition action in district court to divide or sell the real estate.

Key legal concepts to check first

• Who owns the property? If the deed lists the decedent and spouse as joint tenants with right of survivorship, the property passes outside the will to the survivor. A will cannot force sale of property that did not pass through probate.
• Did the decedent’s will give the executor power to sell real estate? Many wills expressly authorize the personal representative to sell real property for payment of debts, taxes, or distribution. If the will grants this power, the executor can ask the probate court to approve a sale.
• Are there statutory spouse protections? North Dakota law provides certain protections for a surviving spouse (for example, allowances or exemptions during administration). These rights can affect the timing and amount of distributions.
• Is there a mortgage, tax lien, or creditor claim? Liens and creditor claims may require sale or affect sale proceeds.

Typical procedures under North Dakota law

Below are the usual legal steps. Exact steps depend on the facts and applicable statutory provisions.

1. Confirm ownership and how property passes:

   Check the deed at the county recorder’s office. If title vested in the surviving spouse alone by right of survivorship or by joint tenancy, the will generally cannot force a sale. If title was solely in the decedent and the will leaves the house to beneficiaries, the house goes through probate and the executor may be responsible for selling or distributing it.

2. Open probate (if not already opened):

   The personal representative or an interested party files a petition with the North Dakota district court to open probate and appoint an executor/administrator. The probate court supervises the estate administration, including sales of estate assets when appropriate. See North Dakota probate resources: North Dakota Courts — Probate and the North Dakota Century Code on decedents’ estates: North Dakota Century Code — Title 30.1 (Decedents’ Estates).

3. Request court authority to sell real property:

   If the will grants the personal representative power to sell, the executor should file a petition (or motion) with the probate court to approve sale of the real estate. If the will does not expressly grant that power, the executor can still petition the court for authority to sell under the probate statutes and for the benefit of the estate (for example, to pay debts or distribute proceeds). The court will require notice to interested parties, and it may set a hearing to consider the sale. The court’s order will specify terms and how sale proceeds must be distributed.

4. If the spouse refuses to cooperate or occupies the property:

   If the spouse occupies the property but the title passed through the will to beneficiaries, the executor can ask the court for an order removing the occupant and authorizing sale. If the spouse claims a statutory right (e.g., homestead or allowance), the court will resolve those claims before approving sale or distribution.

5. If the spouse is a co-owner:

   If the spouse is a co-owner (for example, a tenant in common), the will cannot force the co-owner to give up ownership. A beneficiary who becomes a co-owner (or who has the decedent’s interest) can file a partition action in district court asking the court to divide the property physically or order a sale and divide the proceeds. A partition action forces sale when division in kind is not practical.

6. Distribution of proceeds:

   The court orders distribution according to the will, subject to payment of valid debts, costs of administration, mortgages, liens, and any statutory spouse allowances or exemptions. The executor must follow the court’s directives and file an accounting for the estate.

7. Enforcement remedies:

   If an interested party refuses to comply with a court order (for example, a surviving spouse refuses to surrender possession after the court orders sale or transfer), remedies include contempt motions, writs of assistance, or law enforcement assistance ordered by the court. Civil actions (including partition claims or claims to quiet title) may also be necessary.

What you should do next — practical checklist

• Obtain a certified copy of the death certificate and a copy of the decedent’s will (if any).
• Pull the deed and title history from the county recorder’s office to confirm how title is held.
• Ask whether probate has been opened. If not, an executor should file for appointment with the district court.
• If you are the named personal representative, file a petition with the probate court asking authority to sell or to administer the real property.
• If the spouse is a co-owner, consult about filing a partition action in district court.
• Collect documents: mortgage statements, tax and insurance bills, loan payoff statements, appraisals, and outstanding creditor claims.
• Notify interested parties and prepare to follow the court’s required notice procedures and timelines.

Useful North Dakota links

• North Dakota Courts — Probate: https://www.ndcourts.gov/legal-resources/probate
• North Dakota Century Code (Decedents’ Estates — Title 30.1): https://www.legis.nd.gov/cencode/title-30-1
• North Dakota Century Code general access: https://www.legis.nd.gov/cencode

Helpful Hints

• Do not assume a will controls property that lists the spouse on the deed. Confirm title before acting.
• If you are the executor, get court approval before selling estate real estate to avoid later challenges by heirs, creditors, or the surviving spouse.
• Try negotiation first. A buyout or mediated resolution can avoid the time and cost of court orders and partition actions.
• Preserve evidence: keep a file of notices, orders, appraisals, and communications with the spouse and other beneficiaries.
• Act promptly on mortgage, tax, or insurance obligations to avoid liens or foreclosure that could reduce estate value.
• If you face immediate possession issues (for example, if the spouse locks you out), ask the probate clerk about emergency motions and enforcement procedures.
• Expect timelines: probate court sales and partition actions take weeks to months, depending on complexity and contests.

Final note and disclaimer: This article explains how the process generally works under North Dakota law. It is for informational purposes only and is not legal advice. Laws and procedures can be complex and fact-specific. Consult a licensed North Dakota attorney for advice tailored to your situation.