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Introduced Version Senate Bill 735 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 735

(By Senator Kessler)

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[Introduced March 23, 2009; referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.]

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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.


This section is new; therefore, strike-throughs and underscoring have been omitted.
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