(1) As used in this section:
(a) “Voluntary encumbrance” means any mortgage, trust deed, security agreement, pledge or public improvement assessment lien, or any lien arising from labor or services performed or materials supplied or furnished, or any combination thereof, upon or in respect of property.
(b) “Involuntary encumbrance” means any encumbrance upon property other than a voluntary encumbrance.
(2) If property upon which an encumbrance exists on the date of the death of the testator is specifically devised, the devisee takes it subject to the encumbrance, and the personal representative is not required to make any payment on account of the obligation secured by the encumbrance, whether or not the testator was personally liable on the obligation secured by the encumbrance, except as provided otherwise in the will or in subsection (3) or (4) of this section.
(3) Unless the will provides otherwise, the devisee of specifically devised property may require that an encumbrance thereon be fully or partially discharged out of other assets of the estate not specifically devised, if:
(a) The encumbrance is an involuntary encumbrance; or
(b) The encumbrance is a voluntary encumbrance and:
(A) The will specifically directs full or partial discharge of the encumbrance out of other assets; or
(B) The personal representative receives rents or profits, or both, from the property and the devisee requests that the personal representative apply all or part of the rents or profits, or both, in full or partial discharge of the obligation secured by the encumbrance, in which event the personal representative shall apply the rents or profits, or both, upon principal or interest, or both, owing upon the obligation, as requested; or
(C) Any devisee requests, in a writing signed by the devisee and delivered to the personal representative, that the obligation secured by the encumbrance be fully or partially discharged out of property, or the proceeds of the sale thereof, which otherwise would pass to the devisee.
(4) If a claim based upon an obligation secured by a voluntary encumbrance upon specifically devised property is presented and paid, or if specifically devised real property subject to a voluntary encumbrance is redeemed, and the devisee is not entitled to exoneration pursuant to subsection (3) of this section, the personal representative has a lien upon the property in the amount paid, and the lien shall be administered upon as an asset of the estate.
(5) If property is specifically devised by a will executed before the effective date of this section, and if an encumbrance upon that property exists on the date of the death of the testator, the rights of the devisee of that property in respect of exoneration thereof out of other assets of the estate shall be determined in accordance with the law in effect on the date the will was executed. [1969 c.591 §162]Section: Previous 115.190 115.195 115.200 115.205 115.210 115.215 115.220 115.255 115.265 115.275 115.305 115.310 115.315 115.320 115.325 Next
Last modified: August 7, 2008