H. B. 3246
(By Delegates Webster, Fleischauer, Frazier,
Miley, Perry, Staggers and Susman)
[Introduced March 19, 2009 ; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §41-3-6a, relating to
the nonexoneration of the secured debt of a decedent unless
the will specifically provides for its exoneration.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §41-3-6a, to read as
follows:
ARTICLE 3. PROVISIONS AS TO CONSTRUCTION.
§41-3-6a. Nonexoneration of secured debts.
(a) Unless a contrary intent is clearly set out in the will of
a testator who dies domiciled in this state, a specific devise of
real property or a specific bequest of personal property passes to
the devisee or legatee subject to any debt on the real or personal
property which is secured by a mortgage, pledge, security interest or other consensual lien existing at the date of death of the
testator, without the right of the devisee or legatee of
exoneration from or by any other available assets of the testator's
estate. A general directive in the testator's will to pay debts is
not evidence of a contrary intent that the mortgage, pledge,
security interest or other consensual lien be exonerated prior to
passing of the asset to the devisee or legatee.
(b) Exoneration to the benefit of the devisee or legatee
against any specific devise of real property or any specific
bequest of personal property applies to a mortgage, pledge,
security interest or other consensual lien existing at the date of
death of the testator that was:
(1) Granted or created by an agent acting within the authority
of a durable power of attorney for the testator while the testator
was incapacitated and which secured debt was not later ratified in
writing by the testator before death at a time when the testator
was not incapacitated; or
(2) Granted or created by a conservator or committee of the
testator who was adjudicated to be a protected person.
(c) In the event that any other assets of the testator's
estate are used to pay any debt or part of any debt on the real or
personal property secured by any mortgage, pledge, security
interest or other consensual lien existing at the date of death of
the testator when the property was determined not to be entitled to exoneration as provided in this section, the devisee or legatee is
liable to the personal representative of the testator's estate or
other person who has made the payment or payments, whether
principal, interest or other.
NOTE: The purpose of this bill is to clarify and reverse
existing West Virginia case law and expressly provide for
nonexoneration of the secured debt of a decedent unless the will
specifically provides for exoneration.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.