Encumbered property in an estate

Trusts Discussion
1

Hi

I have a query on how debt attached to a property left in a will should be dealt with that I’d appreciate anyone’s help with.

The deceased left in her will a specific legacy of a encumbered property to one of her three adult children and the will makes no mention of how the debt attached to the property should be dealt with.

The residue of the estate was then left in equal shares to all three of the children. I’m wondering how the debt is dealt with, specifically whether it will come out of the recipient of the property’s share of the residue, or whether it will come out of the residue as a whole.

Many thanks for your help

MS

1 Like
2

Assuming there is no contrary intention, then according to s35 AEA 1925, a debt charged on an asset which passes under a specific gift in a Will is borne by that specific beneficiary, (and not the residue).

Kind regards

Ihsan Ali
I Will Solicitors Ltd

1 Like
3

The debt charged on the property passes with the property unless the will states otherwise.

In the circumstances described, the eneficiary is responsible for the debt, not the residuary estate.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow practitioners.

1 Like
4

Many thanks for your clear replies

5

Debt is on the beneficiary/beneficiaries of the property . A very recent case, Dorman v Reece highlights this.

1 Like