Also known as: exoneration of specific devise · exoneration · specific devise exoneration
Written by attorneys · grounded in primary & secondary sources — see below
A rule of will construction under which a specific devise of encumbered property passes subject to any lien existing at the testator's death. The estate has no duty to discharge the lien from other assets unless the will contains an express direction to that effect.
Liam devised his downtown condo to his son Evan and the residue to his daughter Nora. The condo secured a margin loan that remained unpaid at Liam's death. The will directed payment of all just debts. The executor distributed the condo to Evan without paying off the loan. Evan took the property subject to the lien because the general debt clause did not expressly direct exoneration of that specific encumbrance.
Carlos devised his dockside warehouse to his manager Lina and the residue to his children. The warehouse secured a loan from Harbor Finance. The will contained only a general direction to pay debts. Lina received the warehouse subject to the mortgage. The children bore no obligation to have the estate satisfy the lien.
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Miles devised his studio lot to his showrunner Lena and directed that debts related to productions be settled. The lot secured a production loan. The will contained no express instruction to pay off that particular lien. Lena took the lot subject to the loan. The siblings who received the residue had no duty to exonerate the property.
No. Modern statutes provide that a specific devise passes subject to any mortgage existing at death without right of exoneration, regardless of a general directive in the will to pay debts.
The devisee takes the property subject to the lien. The estate has no obligation to pay the debt from other assets.
Under the traditional rule the personal representative paid the lien from general estate assets so the devisee took free of it. Modern statutes reverse the presumption so the devisee takes subject to the lien unless the will expressly directs exoneration.
…to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”). Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the…