Intestate Succession Where A Person Is Mentally Incompetent

[3nrgy]

If the person is incompetent and never regains mental competence, their estate will pass according to the state's laws of intestate succession.

Could you, or anyone, please elaborate on what you mean by law of interstate succession?

My brother is a paranoid-schizophrenic. I don't think he's ever been declared 'mentally-incompetent' by a court, although he's been involuntarily committed to a psych hospital a couple of times.

I am his sole living relative, caregiver and have power-of-attorney. I'm not his guardian, nor do I have medical 'power-of-attorney' (That's the wrong terminology, but anyway, you know what I mean...I don't have medical directives from my brother.)

I've put most, if not all, of our property in both our names. Investments are registered JWROS. Cars are in both our names. Our home is joint tenancy WROS. I plan to leave everything to him in my will. I might even set up a trust, although my assets aren't that great.

Will it all go through probate anyway, because he's mentally disabled, if I die first?

And if he dies first--likely because he's my older brother and a smoker--will his will have any force if the court knows he was not of 'sound mind'?

[Mr. Knowitall]

Intestate succession laws govern how somebody's assets are distributed if he or she dies without a will.

I don't know if you had the legal right to place your brother's assets jointly with your own. To the extent that you believe he may inherit from you, given his mental condition, you should consider setting up the estate to go into a special needs trust or spendthrift trust. I would urge you to get estate planning assistance from a lawyer.

[3nrgy]

Intestate succession laws govern how somebody's assets are distributed if he or she dies without a will.

I don't know if you had the legal right to place your brother's assets jointly with your own. To the extent that you believe he may inherit from you, given his mental condition, you should consider setting up the estate to go into a special needs trust or spendthrift trust. I would urge you to get estate planning assistance from a lawyer.

Thanks. I'm researching special needs trusts today, and I'll look into spendthrift trusts.

I don't expect that my brother will inherit from me because, as I think I said earlier, he's older than I am--5 years older, and a smoker. So I'd rather avoid the trouble and expense of setting up a trust.

I can accept the fact that, after I'm dead, the court would need to intervene if I leave my assets and property to my brother via steps like joint-tenancy. However I frankly find the suggestion that I haven't the legal right to do these things troubling. I want my brother to have my assets and property if I die first! The court should honor my wishes, within reason. Are you suggesting that a trust is the only route available to me? Do I have any alternatives?

[Edited to add]Another reason I don't want a trust is because I don't know anyone who I can entrust with it's management. My brother and I have no living relatives. We don't have friends I'm willing to give this duty to, and we're thinking of moving south, where we'll know no one. I've heard that banks charge a lot for management of trusts, and lawyers probably do too. I want to give my brother his inheritance! I want it in his pocket! Tell me there's a way, that Probate will give it to him if I make it clear in my will that I want them to!

[Mr. Knowitall]

An estate planning lawyer can help you determine your best option.

You have options other than a trust; they simply may not be the best options.

[3nrgy]

Thanks for your comments. I asked a probate judge here in Michigan if it was illegal for my paranoid-schizophrenic brother to be joint-tenant WROS. He said no, it wasn't. An individual with mental illness can own an interest in real-estate in Michigan. Whether it's a good idea is debatable. A couple of real-estate professionals I talked to suggest that it isn't, because it could lead to a contract being voided. I want my brother to inherit the house even though he will probably go under conservatorship if I die first. I'll keep looking into trusts. I think in my case, my brother would be better off with a conservator. I don't know anyone I would trust with administration of my trust for my brother's benefit. I trust the court to appoint a competent conservator. Thanks again! BTW, I may have neglected to mention that I have p.o.a. over my brother's finances. If we sell the house, I can act on his behalf, so I don't see his ownership as particularly problematic. Just hope the buyer sees it that way!

[seniorjudge]

Michigan Intestate Succession Laws

If any part of a Michigan decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to varies as follows:

* If the decedent left no surviving descendants or parents, the surviving spouse is entitled to the entire intestate estate.
* If all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent, the surviving spouse gets the first $150,000 plus one-half of any remaining assets in the intestate estate.
* If no descendant of the decedent survives the decedent, but a parent of the decedent survives, the surviving spouse gets the first $150,000 plus three-fourths of any remaining assets in the intestate estate.
* If all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not decedent's descendants, the surviving spouse gets the first $150,000 plus one-half of any remaining assets in the intestate estate.
* If one or more, but not all, of the decedent's surviving descendants are not descendants of the surviving spouse, the surviving spouse gets the first $150,000 plus one-half of any remaining assets in the intestate estate.
* If none of the decedent's surviving descendants are descendants of the surviving spouse, the surviving spouse gets the first $100,000 plus one-half of any remaining assets in the intestate estate.

The specific dollar amounts listed above are subject to an annual cost-of-living adjustment.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to:

1. Decedent's children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them.
2. Decedent's parent or parents equally.
3. Decedent's parents' descendants (e.g., decedent's brothers and sisters).
4. Decedent's grandparents or their descendants. Half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents, or either of them if both are deceased. The other half passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, however, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

3. State of Michigan. If there is no taker under any of the above provisions, the intestate estate passes by default ("escheats") to the state of Michigan.

Michigan Intestate Succession Law Fun Facts

* Relatives of the half-blood inherit the same share as relatives of the whole-blood.
* Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession (which means that the person generally doesn't get a share of the decedent's estate). If it cannot be established by clear and convincing evidence that the person who would otherwise be an heir has survived the decedent by 120 hours, it is considered that the person failed to survive for the required period. However, these rules don't apply if the end result is that the state of Michigan gets the intestate estate.
* Relatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent (provided a new-born lives at least 120 hours after birth).
* Michigan's intestate succession laws, as well as other related laws, can be found in Chapter 700 of the Michigan Compiled Laws.

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http://www.finance.cch.com/pops/c50s10d190_MI.asp

[Raya Tahan]

The term "intestate" simply means "without a will". In contrast dying "testate" means dying "with a will" in place. In some cases, the line is fuzzy as to whether a person died "testate" or "intestate" because he or she had a will, but the will might not have been valid. For example, if the will was not properly witnessed it is not valid. Or if the decedent signed the will when he was mentally incompetent, the will is not valid. So, if the will was not valid (for whatever reason) then by default your state's "intestacy laws" will spell out how the decedent's assets are to be distributed. Your brother's house and money and other assets will be distributed by default according to a set of statutes called "intestacy statutes". Those say that a decedent's property goes (1) to their spouse, if they have a surviving spouse, or (2) to their children, if they have no surviving spouse, or (3) their parents if they had no surviving spouse nor children, or (4) their siblings if they had no surviving spouse nor children nor parents.