It’s the Law: Do I have to pay the mortgage of a property I just inherited?

Q: My uncle left me a condominium in his will. I just found out the condominium has a mortgage on it. Will I have to pay the mortgage or will the estate pay it off before I get the condominium?

A: Florida has a statute that provides that a person specifically given property under a will is entitled to have any mortgage or other lien against the property paid by the estate only when the will shows that intent. The statute goes on to state that a general direction in the will to pay debts does not show that intent.

The exact language of the will in your uncle’s estate will determine the answer to your questions. Until you can review that language with an experienced attorney, I will discuss the two Florida appellate decisions applying that statute.

In the case of Woodward versus Smith, Woodward sued the personal representative of his father’s estate for paying off mortgages on property devised to other beneficiaries. Woodward was upset because he was to receive a portion of what was left in the estate after specific gifts were made. Payment of the mortgages reduced Woodward’s distribution.

Woodward’s father had four farms. At one point, three of the farms had mortgages. All of the indebtedness was consolidated into a single loan agreement with a single mortgage against all of the farms.

The personal representative of the estate sold one of the farms and used the proceeds to pay off the mortgage. After pay off, the three remaining farms were distributed to beneficiaries other than Woodward.

Woodward objected on ground that the farms should have been distributed with the mortgage in place. The trial court rejected Woodward’s argument on ground that his father could have included in his will a clause that would have reduced the interest of the other beneficiaries by the same percentage as Woodward’s distribution was reduced when the mortgage was paid off.

The appellate court reversed, holding that the statutory language was clear. In reversing, the appellate court also rejected the personal representative’s argument that the statute only applies to mortgages that remain unpaid at time of distribution and that the personal representative had unfetter discretion to pay debts of the estate during probate.

The other Florida appellate case applying the statute is Estate of Sterner. In Sterner, the will provided that the decedents nurse was to reside in his residence for the rest of her life and as long as she wanted to reside therein, free of rent and of any encumbrance of any nature whatsoever, such as taxes, liens, pledges, etc., except utilities and telephone.

The estate only had $1,846 in cash plus the real estate. Because the estate did not have enough money to pay the property taxes, the nurse paid the property taxes and filed suit against the estate for reimbursement. The personal representative asked the court to interpret the will.

The trial court held that the nurse had to pay the real estate taxes, encumbrances and liens, and would not be entitled to a lien against the estate for payment. The nurse appealed and the appellate court reversed holding that the will demonstrated clear intent to devise to the nurse a life tenancy free of specified encumbrances and that the statute required the estate to pay those expenses. The appellate court recognized that the estate had no money, so it directed an order be entered providing that the nurse could pay the expenses but that the nurse would have a lien against the proceeds derived from sale of the property and, if the nurse died, the lien would pass to her estate.

The statutory language is clear, but the will language may be subject to interpretation. I suggest you consult with an experienced attorney at your earliest opportunity.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@embarqmail.com or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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