What to do when you have 1 incapacitated heir ?

Question

I have a deal property under contract with the sister, however she has 4 other siblings of which 1 is incapacitated in a state mental facility he does not have contact with the family. Is there a way or procedure to be able to buy the property without requiring the incapacitated person's signature or waiving the incapacitated person interest in the property.

The property belonged to the deceased mom. No will.

So the kids get the house traditionally.

Thanks

The property belonged to the deceased mom. No will.

So the kids get the house traditionally.

Thanks

Account Closed · Answer

@Sabrina Taylor

I have run into this scenario more than once.

First of all, their family problem is their family problem and not your business problem.  Keep it that way.  You are a business woman and not a social worker.

Before going further, you mentioned the mother died intestate.  Has the estate been through probate?  If not, quit wasting your time. The heirs can do nothing until then, and without a will, that can take a couple of years.  (You may have heard that the worst will is better than no will - that is the reason.)

In the mean time, no one is paying property taxes, no one is maintaining the property, and the property will deteriorate to the point where although it has value now, it won't by the time this all gets resolved, if ever.

But wait, there's more.  The probate court will require an appraisal, and the property will have to sell for 80% of appraised value.  That not be a number that will work for you so once again, you will be wasting your time pursuing this.

If by some amazing stroke of luck it has been through probate and the property can be sold, you need the family to get together and pick one person to be in charge, and all the others give POA to the family leader.  You have to deal with one person.  You can never get an agreement with a committee.  That includes the mentally incapacitated one.  If no one is the POA for that person, you have the same issue as you do with the estate.  The State will appoint someone to act on that person's best interest and good luck getting that person to do anything.

Have fun!

Sabrina Kane · Answer

Account Closed I like how you said that - auh Ha moment

You're not a social worker - so true. Thanks for that kick in the butt reality check.

I have all the other siblings willing to give POA to the one sister. My hurdle is that one incapacitated sibling.

I think I will just let the deal go and move on.

I'll consider this closed case unless we have a late comer that chimes in on this one.

----------------------CASE CLOSED -------------------

Colleen F. · Answer

In my experience from the family side a conservatorship is for the monetary aspects of  an incapacitated adult and a guardianship is for making other decisions such as medical care.    Check  the courts if a conservator has been appointed. If this is a long time incapacity people may have forgotten, it does not need to be the same person that makes medical decisions and it could be someone other then a sibling.   Here a conservator would be required for a total inheritance of > 5,000 but that differs by state, so if the sibling doesn't have one this could trigger the need for one depending on their share of the inheritance.

Rick H. · Answer

The issue here is standing.

Without legal standing, you cannot pass marketable title vested in record owner who is deceased.

Foreclosure can bypass this. So can certain quiet title actions. However, a formal probate is the method that heirs clear title after settling Decedent's estate.

An heir can assign their interest but not the interests of others.

An has beneficial interest in a Decedent's estate in the form of equity. However, there may be no equity after settlement of secured and unsecured creditor claims. In CA, the equity deal killer is Medi-Cal (DHCS). I've never seen a claim for less than $30,000, but that's in my state.

1/6 interest is a foot in the door, but not the whole enchilada.

The real estate agent, wholesaler or investor must recognize when opportunities don't fit their criteria and are better off referring to a local expert with experience so you both make money.

Sabrina Kane · Answer

Thanks @Andrea Vanias for that weigh in ... I did a deal last  month where Grandfather died no will and he had 2 kids who both died. But those 2 kids had  1 kdi each. I signed a contract with the sister and the brother deeded his interest to sister. We did affidavit of heirship on Grandfather and his wife , as well  his 2 kids that passed. We had to get death certificates on grandfather his wife and his 2 kids. There was never a probate.

So Im use to doing these types of cases, but this particular one has a incapacitated heir that cant talk or communicate. He has a case manager that manages his medical care that I do know, so my next move was to try to contact the case manager at the ward and see of she can shine some light on this, matter.

every deal is a mystery and you learn alot lol - I love cracking cases. :)

Dave Toelkes · Answer

The incapacitated heir most likely has a legal guardian and/or conservator appointed by the court.  That individual is who you will want to include in any discussions with the other heirs.

Sharon Vornholt · Answer

@Mark- that's an old thread.

Mark Gustafson · Answer

@Sharon Vornholt

Hello Sharon this thread seems to be right up your alley.  Would you be kind enough to post your opinion ?

Thanks , Mark G

Waylon Gates · Answer

@Sabrina Taylor Go talk to a title or escrow company.  They will be able to guide you on your options and how they deal with this.  If there is a way I would expect them to be able to help.  You are guessing if you don't get a professionals opinion.  You may be surprised at some way of potentially dealing with this.  Alternatively if you don't want to hassle I have connections that would be happy to see this one through.

Jonathan J. Miller · Answer

None of the other siblings have power of attorney?

I am pretty sure you cannot move forward without dealing with this issue.

What to do when you have 1 incapacitated heir ?

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