IHTM12091 - The incidence of debts and legacies: debts charged on property

S35 Administration of Estates Act 1925 applies to all property, which at the time of the death of the deceased is charged with the payment of money. It provides that so far as beneficiaries claiming through the deceased are concerned, the property charged is primarily liable for the payment of the debt. If the amount of the debt is greater than the value of the asset, the creditor will be entitled to the balance out of the other assets of the estate.

This means that, subject to any contrary intention expressed in the will or in any other deed or document, a devisee of freehold or leasehold property will take it subject to any mortgage or other specific charge outstanding as at the date of death.

The section only applies to the extent that the debt is actually charged on the property.