Court Reverses A Probate Order Requiring An Executor To Distribute Real Property Free Of Any Liens

Winstead PC

In In re Estate of Heider, a probate court ordered that an executor should distribute real property to a beneficiary free of liens. No. 05-14-00436-CV, 2016 Tex. App. LEXIS 5978 (Tex. App.—Dallas June 6, 2016, no pet. history). The will devised the tract of land to the testator’s son, stating “I give, devise and bequeath . . . the section of land in Farmersville east of existing North-South fence line (if not sold); to my son Daniel Gary O’Brien.” This tract was collateral for a $81,000 loan.

The court of appeals noted that Section 255.301 of the Estates Code states the following: “Except as provided by Section 255.302, a specific devise passes to the devisee subject to each debt secured by the property that exists on the date of the testator’s death, and the devisee is not entitled to exoneration from the testator’s estate for payment of the debt.” Section 255.302 provides: “A specific devise does not pass to the devisee subject to a debt described by Section 255.301 if the will in which the devise is made specifically states that the devise passes without being subject to the debt. A general provision in the will stating that debts are to be paid is not a specific statement for purposes of this section.” The court of appeals held that the will did not “specifically state” that the bequest to the son was to be free of the lien. Therefore, the court reversed the probate court’s order and required the distribution of the real property to be with the lien and the debt.

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