Is there a doctrine in the house? Caught up in the common law


Sometimes the law changes and an existing document, like a will, gets caught in the middle. Consider the saga of the common law doctrine of exemption.

The exemption doctrine specifies 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 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 deal with the mortgage issue.

This is where the Doctrine of Exemption comes in. According to doctrine, the brother would get the house “exempt” from mortgage debt. This means that he gets the house free from any obligation to pay the associated debt. Instead, the mortgage debt becomes an obligation of the estate, so it is essentially paid on the sister’s share.

The exemption doctrine does not apply only to real estate; 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 in the rest of the estate to pay off the mortgage. The second is that, if the remaining estate has enough assets, they may not be liquid and the executor may not have the time or inclination to sell them quickly.

The third is that the will does not affect the contractual rights of the mortgage company; she still has a lien on the house and it will be foreclosed if the mortgage is not paid on time. The fourth is that John probably had never heard of the Doctrine of Exemption when he carried out his will, and the result may be contrary to his intention.

Because of these problems, Texas passed a law called “No Debt Relief Right”. The law came into effect on September 1, 2005. Under the new law, debt goes hand in hand with assets. In our example, by law, the brother would inherit both the house and the obligation to pay the mortgage, and the sister would inherit the remainder of the estate.

Much time has passed since September 1, 2005. So why are we still talking about the Doctrine of Exemption? The answer is simple: the law is not retroactive. Therefore, the doctrine of exemption still applies to older wills.

Surprise.

Both the doctrine of exemption (for wills signed before September 1, 2005) and the law (for wills signed on September 1, 2005 and after) only apply if the will does not specifically address the liability of the mortgage debt. The important thing to remember is that whenever a specific bequest is made, it should always be accompanied by a statement indicating who is responsible for paying any associated debt. Keep in mind that the general language included in most wills about the estate paying all fair and due debts is not specific enough to do the trick.

Virginia Hammerle is an attorney with the law firm of Hammerle Finley whose practice includes estate law, estate planning and contested litigation. To receive her newsletter, contact her at [email protected]. This column is for general information only and does not constitute legal advice.


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