Short answer. Personal property not disposed of by will is chargeable first. Only if it is insufficient, or selling it would harm the estate's participants, may the court authorize selling, mortgaging, or encumbering the undisposed real estate, with any deficiency then met by contribution under this rule's other provisions.
What the law says
The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses; and if said personal estate is not sufficient for that purpose, or its sale would redound to the detriment of the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor.
Rule 88, Section 3 — Personalty first chargeable for debts, then realty. Read the full provision →
Personalty goes first
The rule establishes a clear order of resort for paying an estate's debts and expenses: personal property the deceased did not dispose of by will is first chargeable, so real property is not the default source of payment simply because it may be worth more or easier to identify and value. This ordering protects real property, which is often a family home or land the heirs have a stronger interest in keeping, from being the first thing liquidated to satisfy the estate's creditors.
Real property only as a last resort, with court authority
Real property comes into play only if the personal estate proves insufficient, or if selling the personal estate would redound to the detriment of the estate's participants. Even then, the administrator needs the court's authority before selling, mortgaging, or otherwise encumbering the undisposed real estate, so this remains a court-supervised step rather than the administrator's independent call. The administrator has to actually petition the court and justify why resorting to real property is necessary before any sale, mortgage, or encumbrance can proceed.
Deficiencies get spread by contribution
Where a shortfall remains even after resorting to both personal and real property, the rule contemplates that any deficiency is met by contributions under this rule's other provisions, spreading the remaining burden fairly rather than leaving it to fall arbitrarily on whichever asset or heir happens to be sold or assessed last. That contribution mechanism keeps one devisee or legatee from bearing a disproportionate share of the estate's debts simply because of which specific property they were to inherit.
Property specifically disposed of by will
The rule's ordering applies to personal and real property that the deceased did not dispose of by will; property that was specifically devised or bequeathed sits in a different position, and the estate's general debts are not automatically charged against it the same way ahead of undisposed property. That distinction matters for anyone left a specific bequest, since it affects whether their inheritance is exposed to the estate's creditors before other assets are used up.
Related provisions
- Rule 88, Section 3 — Personalty first chargeable for debts, then realty
- Rule 88, Section 1 — Debts paid in full if estate sufficient
- Rule 88, Section 4 — Estate to be retained to meet contingent claims