Short answer — what typically happens

If the house is part of the decedent’s probate estate and the will directs sale and distribution of proceeds, the personal representative (executor/administrator) generally has the duty to collect, protect, and distribute estate assets according to the will and the law. If the surviving spouse refuses to cooperate, the personal representative or an interested beneficiary can ask the probate court to authorize a sale or ask a civil court to partition the property or order sale. Which process applies depends on how title is held, the spouse’s legal rights (homestead, exempt property, or elective share), and whether the property is a probate asset.

Step-by-step process under Virginia practice

1. Confirm ownership and whether the property is a probate asset

Gather the deed, mortgage statements, title report, and the will. Key questions:

• Was the property titled solely in the decedent’s name, jointly with right of survivorship, or as tenancy by the entirety? (Virginia law treats different titles differently.)
• Did the will specifically direct sale and distribution of the proceeds?

If the property passed automatically by title (joint tenancy or tenancy by the entirety), it may not be part of probate. If it is part of the probate estate, the personal representative usually manages it as an estate asset.

See Virginia statutes on property, wills, and probate for more background: Title 55.1 (Property) and Title 64.2 (Wills, Trusts, and Fiduciaries): https://law.lis.virginia.gov/vacode/title55.1/ and https://law.lis.virginia.gov/vacode/title64.2/.

2. Determine the surviving spouse’s statutory rights

Virginia law gives surviving spouses certain protections — for example, rights to exempt property, a statutory allowance, and an elective share. These rights can affect whether the house must be sold or how proceeds are divided. Make sure the personal representative accounts for any such claims before distributing estate assets.

General probate and spouse-protection rules appear in Title 64.2. Review those provisions and consult counsel about how they apply to your facts: https://law.lis.virginia.gov/vacode/title64.2/.

3. Try informal resolution first

If possible, communicate with the surviving spouse and beneficiaries. Consider mediation or neutral settlement discussions. Mediation often avoids litigation costs and preserves family relationships.

4. If the informal route fails, use the probate court

If the house is an estate asset and the will directs its sale, the personal representative can petition the probate court for instructions or for authority to sell estate real property. Probate courts can approve sales and resolve disputes about the administration of the estate. File a petition that describes the title, the will’s instruction, creditor claims, and the relief requested (for example, approval of sale, order to distribute proceeds).

5. If the surviving spouse co-owns the property, consider a partition action

If the surviving spouse holds an ownership interest (co-tenant), and they will not agree to sell, an interested person (often the personal representative or another co-owner) can file a partition action in circuit court to force sale or physical division of the property. Partition remedies include dividing physical property (rare for houses) or ordering a sale and dividing proceeds among co-owners. See Virginia civil procedure rules and Title 8.01 for court remedies: https://law.lis.virginia.gov/vacode/title8.01/.

6. Court orders and sale

When the court authorizes sale — either through the probate court approving a personal representative’s sale or through a partition action — the sale proceeds are collected, secured against creditor claims and statutory spouse entitlements, and then distributed according to the will and the court’s order. If liens, mortgages, or homestead claims exist, the sale process will clear or satisfy those first.

7. If the spouse refuses to vacate after sale

If a purchaser or the estate has title following a court-ordered sale and the surviving spouse refuses to leave, the buyer or the estate may obtain a writ of possession or similar relief from the circuit court to evict occupants legally. Landlord-tenant rules do not apply in the same way to ownership eviction; you will need a court order and law enforcement assistance for removal if necessary.

Documents and evidence to gather before filing court papers

• Original will and any codicils
• Death certificate
• Deed showing current title
• Mortgage/loan statements and lien information
• Tax records and homestead/exemption documentation
• Estate inventory and creditor notice records
• Communications with the surviving spouse (offers, refusals, settlement attempts)

Practical timeline and costs

Timelines vary. Probate filings and court-authorized sales typically take several months; contested partition actions often take longer. Costs include court fees, attorney fees, title work, appraisal and sale costs, and potential homestead or elective-share payouts. Expect a contested matter to be significantly more expensive than negotiation or mediation.

Helpful Hints

• Start by confirming how title is held — that single fact often determines the path forward.
• Check for an automatic survivorship right (joint tenancy or tenancy by the entirety) before assuming the house is an estate asset.
• Preserve evidence of the will’s instructions and any communications with the spouse.
• Consider mediation or a neutral evaluator before filing suit — courts favor resolution where possible.
• Work with a probate attorney early if the estate is contested; they can file the correct petition and protect the personal representative from liability for acting in accordance with court orders.
• Be mindful of the surviving spouse’s statutory rights — failing to account for them can delay settlement or expose the estate to claims.
• If you are a beneficiary, remember that only a court order can force compliance when negotiation fails.
• Keep detailed records of all estate expenditures and proposed distributions in case the court needs to review the personal representative’s decisions.