In Florida an encumbered property shall be entitled to have the encumbrance on the property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in a will to pay the debts does not show that intent Florida Probate Code Section 733.803 , Florida Statutes (2002)
In a recent case a Personal Representative tried to make the argument that since the debt was paid off a mortgage during the probate proceeding and that the above rule only applied if the debt was in place at the time of the distribution. In re Estate of Woodward (Fla. 2d DCA Apr 09, 2008)
The court said that the PR could not rewrite the decedents will and pay off the mortgage. The Florida Probate Code makes it clear that without a specific instruction in the will the property was to pass with the encumbrance.
If you are a PR or a beneficiary of an estate in Florida and you have a question about whether you can pay off a mortgage, Contact a Florida Estate Planning Lawyer to discuss your circumstances.