My grandma wants to leave me her house. She does not have a Will. Lawyer said she is not mentally competent?

Question

My grandma wants to leave me her house. She does not have a Will. Lawyer said she is not mentally compentent. The lawyer asked some questions and my grandma said she couldn't remember some details about her own life.

I bought a Will from Office Max and I will have her sign it with a Notary. Any advice?

Should I take this to a lawyer afterwards? I am not her legal granddaughter. She has no family and adopted me as her granddaughter unofficially before I was born and we are very close.

Answer 1

Some, if not most of the answerers here are misinformed.

A lawyer (at least a good one) will always ask an elderly person a few questions to determine the testators competency when executing a will. HOWEVER, a lawyer who refuses to allow her to execute the will has not deemed her incompetent in any legal sense, he has just refused to attest to the will or her competency in his opinion. No trial or judge are required to deem someone incompetent. Three independant doctors can do it, or it can be done by application to a public trustee office.

The lawyers are essentially covering their own bums, as they can be called into court to attest to her competency later if the will is contested, which could reflect badly on him.

As long as she is competent, (and this doesn't have to mean have perfect memory, people lose memory as they age, if she can handle her own finances and pretty much care for herself) she can leave her estate to whomever she pleases. There are NO laws which state that she must leave anything to children or siblings. The only exception is spouses or common law partners, as they are, by law, entitled to a portion of an estate (with or with out a will). If she dies intestate (no will) however, the estate follows kinship (ie. spouse - children - grandchildren-siblings-nearest relative- if none of those, it goes into a public trust). If there is no surviving family, there should be no problem with her will being contested.

I would try taking her to another lawyer. As long as she can remember a few details of her life, her current financial status and most importantly can accurately described her cirumstances and why she wants to will things to you (ie no family, or a family that has never cared for her, while you have) a lawyer will normally go ahead with the will. She should, if at all possible, go the lawyer alone and tell him what she wants done. It will seem less likely that you are coercing her to do this if she can advise the lawyer independantly of what she wants.

As far as the Office-Max store will kits go, if there is ANYONE who wants to contest her bequest to you, it will be easily done if her will is from a Will kit. That being said, her will or signature need not be notarized in this type of will. Make sure two people witness her signing the will, and NOT you or anyone else she may name in the will. Make sure the witnesses have included their full names and contact information, so they can be contacted in the event it is contested to attest to the fact that you did not coerce her, forge her signnature and that she was of sound mind. One of these witness should then attend a notary or lawyer with the will and swear an affidavit of execution . The affidavit will simply state that they and the other person were witnesses to the will, she signed it in front of them, the date it was signed and where, she was over 18 and competent and that neither witness is a beneficiary in the will. They will swear this and sign it and the back of the last page of the will will be marked as an exhibit to the affidavit so that there is no question as to which will the affidavit refers to. This document will be notarized and attached to the will. Make sure she and the witnesses initial every page of the will.

If her only asset is her home, even more easily, she can add you as what is called a "joint tenant" on the title to the home. This basically covers her in that you cannot sell the home out from under her while she is living, but when she dies, her share of the home is transfered to you, by way of a simple land document that is cheap to register and cannot be contested in any estate court. Adding you as a joint tenant will still require a lawyer, but it is relatively simple and as long as she is not babbling and drooling when she goes in, it should be fine.

Incidentally, (and please do not take this as accusatory) are you sure she is aware of what she is doing??? If you are not, you should forget about the home or the estate and take the high road and just help her in her older years.

Answer 2

By getting the will-special at Office Max, essentially making the will for her, and then getting it signed by a notary - you have opened yourself to a world of hurt.

You were told by a professional about the mental compentency on grandma, knew you would be at a loss, and have done some things that appear very selfish and immoral.

That "will" is easily contested, and then you would probably be locked out of any benefit.

You should have done it by the book, because this makes you look just like a suspect on Law & Order.

Answer 3

1st, in my state, at least, a lawyer cannot declare someone incompetent. that must be decided by a judge at hearing.

if it were me, i would look into a trust of sorts (i cannot remember what exactly it is called -Life Estate maybe?), where she deeds you the house ASAP with the stipulation that for as long as she is physically able she can live in the house free of charge. you would be responsible for any repairs/taxes/etc as the house would be in your name, and once she was no longer able to live there (ie: needed nursing care, or died) the house is yours to move into.

you will want anything notarized, and if at all possible, have the grandma sign the forms/will/etc in front of the notary & other witnesses if possible, don't have her sign them and then get them notarized (some notaries will not notarize the form unless they witness it also)

also, if she just outrightly gifts the house to you, i believe you would have to pay gift taxes on it, which could be significant.

if the house is already paid off (ie: no mortgage) it is much easier than if there is a lender involved.

it is also always possible that someone will take this to court and make life difficult.

see here for a bit more info:
http://www.nolo.com/article.cfm/pg/3/objectId/AFB68DC0-43E1-441A-A4DD32ED0B20DD6F/catId/DE246952-56DE-4DE2-BB6C29FA50C961A2/213/243/282/FAQ/
http://www.thinkglink.com/Life_Estate_On_Home.htm

Answer 4

First, she is not your grandmother, so be careful in what forums you refer to her that way. It could be perceived as fraud, particularly if you are talking about her finances.

Second, if the lawyer says she is not mentally competent, do not waste your time trying to get her to sign an OfficeMax will. Since she is not competent, her judgment in willing her assets would not be accepted anyway. Plus, if you were thinking of getting any of her assets, it again looks like you were trying to take advantage of a mentally incompetent person.

I also question who's lawyer decided she is "incompetent." I don't even remember all the details of my yesterday, so depending on the questions and how she answered, makes a big difference. Ultimately, a court determines incompetency and assigns a guardian, not a lawyer.

Answer 5

Not remembering all the details of your life is not enough to say that she is not mentally competent. If she is not mentally competent, then there is nothing that can be done since a will requires that the person be mentally sound. If you can get a doctor to declare that she is mentally sound, then the will would be acceptable, along with the will.

If the "adoption" is not official, then it does not count.

If there is no family, then chances are the will would not be contested, otherwise it would be thrown out.

Answer 6

The lawyer is not able to declare her incompetent. Only a judge can do that. Every state has different laws regarding this. You should really seek the advice of another lawyer.

Answer 7

If she has no will then all he assets will go to probate when she dies, you will then have to apply to the probate court and make your case as to why you should be entilted to her things.

They will also advertise that they are seeking living RELATIVES to her estate, just becasue you dont know about them doesnt mean they dont exist. A distant cousin is more likely to have a succesful claim than yourself who is no relation whatsoever.

If you try and organise documents like deeds etc prior to her death then you could be charged with attempted fraud.

If I were you I would get together a phot history , including all correspondance to support your closeness theory and use it to support your probate submission.

Answer 8

Before she signs the will get the signing of the will on camera so there is NO chance that people will say you forged her signature. Also seek good legal advice before she signs it.

If you are not a "blood" relative it is infinately more complex than it should be.

Get good legal advice.

Answer 9

I say find an estate lawyer and have her sign it front of the lawyer, because as long as her signuture is on that paper leaving you the house. then it does not matter who she leaves it to.

Answer 10

A LAWYER IS NOT A MENTAL HEALTH PROFESSIONAL HE CANNOT DETERMINE IF SHE IS OF SOUND MIND. ONLY A DOCTOR CAN DO THAT.
HAVE HER SIGN THE WILL AND HAVE IT NOTARIZED. WHO WILL CONTEST IT IF SHE HAS NOBODY.
MAKE SURE ALL THE PAPERWORK IS IN ORDER AND THAT SHE SIGNS IT WILLINGLY. KEEP THE WILL SAFE TIL THE TIME THAT SHE EXPIRES. AT THE TIME OF DEATH YOU CAN GET A PROBATE ATTY. AND FILE THE WILL IN PROBATE COURT.