Sometimes the law changes and an existing document, such as a will, is caught right in the middle. Consider the saga of the common-law Doctrine of Exoneration.
The Doctrine of Exoneration addresses who is responsible for paying the debt attached to an inherited asset if the will is otherwise silent. Suppose John Smith, a single man, owns a house with a mortgage. John wants his brother to inherit the house and he wants to leave the rest of his estate to his sister. When John makes out his will, he makes a specific bequest (gift) of the house to John, and leaves the rest of his estate to his sister. John’s will does not specifically address the issue of the mortgage.
This is where the Doctrine of Exoneration steps in. Under the doctrine, the brother would get the house “exonerated” from the mortgage debt. That means he gets the house free of any obligation to pay the associated debt. Instead, the mortgage debt becomes an obligation of the estate, so it essentially is paid out of the sister’s share.
The Doctrine of Exoneration does not apply just to real property; it applies to any type of property that is collateral for a loan.
There are obviously practical problems with the doctrine. The first is that there may not be enough assets left in the rest of the estate to pay the mortgage. The second is that, if the remaining estate has enough assets, they may not be liquid, and the executor may not have time or inclination to quickly sell them.
The third is that the will does not affect the mortgage company’s contractual rights; it still has a lien on the house, and it will foreclose if the mortgage is not timely paid. The fourth is that John had probably never heard of the Doctrine of Exoneration when he executed his will, and the result may be opposite of his intent.
Because of these problems, Texas adopted a statute entitled “No Right to Exoneration of Debts.” The statute went into effect on Sept. 1, 2005. Under the new law, the debt goes with the asset. In our example, under the statute the brother would inherit both the house and the obligation to pay the mortgage, and the sister would get the rest of the estate.
A lot of time has passed since Sept. 1, 2005. So why are we still talking about the Doctrine of Exoneration? The answer is simple – the statute is not retroactive. Accordingly, the Doctrine of Exoneration still applies to older wills.
Surprise.
Both the Doctrine of Exoneration (for wills executed before Sept. 1, 2005) and the statute (for wills executed Sept. 1, 2005, and later) apply only if the will does not specifically address the responsibility for the mortgage debt. The takeaway is that anytime a specific bequest is made, it should always be accompanied by a statement about who is responsible for paying any associated debt. Keep in mind that the general language included in most wills about the estate paying all just and due debts is not specific enough to do the trick.
Virginia Hammerle is an attorney with Hammerle Finley Law Firm whose practice includes probate law, estate planning and contested litigation. To receive her newsletter, contact her at legaltalktexas@hammerle.com. This column is for general information only and does not constitute legal advice.
