only76daughter
Junior Member
What is the name of your state (only U.S. law)? Pennsylvania
My father just passed away a week ago, leaving myself (only daughter) and my stepmother as co-beneficiaries in his will. To my knoweldge, will has not been probated yet (a whole other kettle of fish I will ask this forum about separately). Stepmother is getting the house, per specific bequest in the will, and there is NO mention in the section of the will pertaining to it that the remaining $107,000 left on the mortgage is to be paid off. The "rest and remainder" of his estate (which is where the bulk of its value lies, in an extensive collection of antiques) is to be sold at public sale or auction (but there is no date or deadline specified), with the net profits being divided as such: 60% to me and 40% to my stepmother. One of the first sections in the will is a standard directive to pay off debts (out of the "rest and remainder"), and in this debt section my Dad specifically mentions "death taxes", "costs of administering the estate" but does not specifically mention mortgage (nor is this enumerated in the section listing Executor's powers). In other words, there is NO specific mention anywhere in his will about the estate paying off the mortgage. In my opinion and based on what I have read about there needing to be a specific directive in the will to pay off mortgage, it is clear that my Dad did NOT intend to have the residual estate pay off this mortgage. Nonetheless, the Executor (a lawyer friend of my Dad and stepmother's, who knows her far better than he knows me) in reading the will was lumping the mortgage debt in with the other ones and citing a total of "approximately $120,000 that we need to come up with very soon" via the first big auction of several to come. This seems very odd and fishy to me, and I have done a small amount of online research to get more clarification. I have looked at the Pennsylvania Probate Code (Title 20), specifically item 12.1 which discusses "nonexoneration" of "security interests" (which I presume includes mortgages). I have also read of a court case ---IN PENNSYLVANIA-- in which a beneficiary sued an Executor for failing to inform that the estate was not liable for mortgage debt, and won, after estate was closed. So my question here is threefold: 1) am I indeed correct that Pennsylvania law (and Dad's will) says estate isn't liable for what is now her debt? 2)before probate is opened and closed and before she is legally owner of house, can Executor insist on estate paying off this mortgage? and 3)if I file litigation, is there a good chance I will collect, and when should I file? One very important caveat I should mention here is that I would prefer NOT to have this Executor removed because my stepmother is next in line and I absolutely do not trust her.
I am all too aware that pretty much from the day my Dad was first diagnosed with cancer, stepmother (and stepmother's mother) were pushing him that he "better not leave her with a house full of debt". But I also know that my Dad left her all the cash (in currency and accounts), smallish insurance policy & IRAs, 40% net profits of antiques, and sent many antiques to auction before his death, netting over $300,000 from their sale, which I presume he gifted her and is now in her checking account or otherwise belonging to her. I only bring all that up not because I believe I have any right to any of that money but to elucidate why "my give-a-damn's busted" regarding MY handing over 60% of her mortgage.
My father just passed away a week ago, leaving myself (only daughter) and my stepmother as co-beneficiaries in his will. To my knoweldge, will has not been probated yet (a whole other kettle of fish I will ask this forum about separately). Stepmother is getting the house, per specific bequest in the will, and there is NO mention in the section of the will pertaining to it that the remaining $107,000 left on the mortgage is to be paid off. The "rest and remainder" of his estate (which is where the bulk of its value lies, in an extensive collection of antiques) is to be sold at public sale or auction (but there is no date or deadline specified), with the net profits being divided as such: 60% to me and 40% to my stepmother. One of the first sections in the will is a standard directive to pay off debts (out of the "rest and remainder"), and in this debt section my Dad specifically mentions "death taxes", "costs of administering the estate" but does not specifically mention mortgage (nor is this enumerated in the section listing Executor's powers). In other words, there is NO specific mention anywhere in his will about the estate paying off the mortgage. In my opinion and based on what I have read about there needing to be a specific directive in the will to pay off mortgage, it is clear that my Dad did NOT intend to have the residual estate pay off this mortgage. Nonetheless, the Executor (a lawyer friend of my Dad and stepmother's, who knows her far better than he knows me) in reading the will was lumping the mortgage debt in with the other ones and citing a total of "approximately $120,000 that we need to come up with very soon" via the first big auction of several to come. This seems very odd and fishy to me, and I have done a small amount of online research to get more clarification. I have looked at the Pennsylvania Probate Code (Title 20), specifically item 12.1 which discusses "nonexoneration" of "security interests" (which I presume includes mortgages). I have also read of a court case ---IN PENNSYLVANIA-- in which a beneficiary sued an Executor for failing to inform that the estate was not liable for mortgage debt, and won, after estate was closed. So my question here is threefold: 1) am I indeed correct that Pennsylvania law (and Dad's will) says estate isn't liable for what is now her debt? 2)before probate is opened and closed and before she is legally owner of house, can Executor insist on estate paying off this mortgage? and 3)if I file litigation, is there a good chance I will collect, and when should I file? One very important caveat I should mention here is that I would prefer NOT to have this Executor removed because my stepmother is next in line and I absolutely do not trust her.
I am all too aware that pretty much from the day my Dad was first diagnosed with cancer, stepmother (and stepmother's mother) were pushing him that he "better not leave her with a house full of debt". But I also know that my Dad left her all the cash (in currency and accounts), smallish insurance policy & IRAs, 40% net profits of antiques, and sent many antiques to auction before his death, netting over $300,000 from their sale, which I presume he gifted her and is now in her checking account or otherwise belonging to her. I only bring all that up not because I believe I have any right to any of that money but to elucidate why "my give-a-damn's busted" regarding MY handing over 60% of her mortgage.