Estate Law Questions? Ask an Estate Lawyer.
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If the will makes it clear that the devise is to carry the mortgage with it or not carry the mortgage with it, then the will is clear. If the will says you take subject to the mortgage, you get the debt. If the will says the executor should pay off the mortgage, you get the house free and clear. The intent of the testator always trumps the default position of state law. More states than not have enacted laws that assume otherwise - that is, that the devisees get the debt as well as the real estate, that the real estate is not exonerated from the debt. Florida is included in those states that have this rule. The state law provides that, barring any contrary provision in the will, the beneficiary gets the burden of the debt as well as the real estate. SO the estate is not liable for the debt before passing it to the beneficiaries. That is not to say that the beneficiaries are personal liable for the debt once it is passed. The mortgage attaches to the property but the bank cannot hold the beneficiaries personally liable for the debt. So you would most likely have to refinance the debt or pay it off once it passes.
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