retarded brother passing away intestate

[hinaman]

Our family attorney told us recently that it would be best if my older brother did NOT make out a will. He is very, very slightly retarded and there is some chance he would insist on leaving some of his assets(now held in trust for him by a bank) to odd organizations, quasi-"friends" who might easily persuade him to leave assets to them, etc. Our attorney said to avoid all such problems, his dying intestate would allow his assets to automatically pass to me -- no other siblings & both parents have passed away. (We're not even sure if the idea of making a will is something he understands clearly)
This makes me a bit uncomfortable however for a variety of reasons. But my legal question is, is it really that simple? Is there a chance that dying intestate would allow, say, cousins to inherit? Would the probate process be greatly lengthened? Any other problems?
Thanks for your help

 

[advisor10]

1-31-2002

Each state's probate laws are different. What state is this in?

What is the age of the older brother?

Is there a legal or medical determination that he is officially retarded or mentally challenged?

Has someone been named as an official guardian for him or is he basically independent enough to take care of his own business affairs?

 

[hinaman]

retarded brother/inheritance problems

The state is New York State. His retardation has not been recently medically "certified," though it was so certified when he was put on permanent disability about 12 years ago. And all of his school records provide overwhelming evidence, he is on permanent disability for his problems and any doctor would testify immediat ely as to his condition. It is a very old and well-established problem. The problems are quite obvious & well known for years. That is why all of his assets are in a lifetime trust for him.

His age is 65

Our family attorney strongly suggested that I be appointed his legal guardian, though I did not like this idea at all and have so far refused; he really cannot manage most of his own affairs, and gets by only because he has plenty of friends helping him. He can cash a check at the bank, but otherwise cannot handle a checking account and cannot pay his own bills, do taxes, manage investments, etc. (For example, he does not understand the difference between principal and interest on the principal.). On the other hand, he regularly does simple jobs for his local church and is dependable to show up on time, etc. and can hold a fairly coherent conversation on simple topics.

 

[advisor10]

2-2-2002

DEAR HINAMAN:

Your attorney was somewhat correct--with no other heirs that would qualify (such as a wife or children), you would be the sole heir. Cousins are not closely related enough to be legal heirs. But you would not "automatically" be entitled to his property/monies, you would still have to submit paperwork to the probate court to process his estate as "intestate" (without a will) and you would want to be appointed administrator/executor.

It would also be a good idea for you to be appointed guardian, but you would need to talk to a family law attorney (or post your question on the family law section of this website), or check out a book from a library to find out exactly what guardianship requires, as far as responsibilities, before deciding to do that.

Since your brother is reasonably competent, I think it would be the ethical thing to do to still have a will drawn up, or at least ask him who he would like to leave some monetary gifts to (in the absence of a will, thus saving the expense of probating it) so that you could carry out his wishes informally by issuing the checks when the time came after he died. He has the right to leave his money to anyone that he would want to, and you should not just automatically deny him that right.

You should also try to discuss with the trustee, what would happen to the trust fund in the event of his death. Would the monies become part of his estate or are there other special instructions in the trust that would mention that the funds should be diverted elsewhere for some other purpose? Also try to find out what type of trust it is (for example, living trust or whatever), so you can read some library books on the type of trust it is to get more information about how trusts are handled.

advisor

 

[hinaman]

Advisor,

Thanks very much for your extensive comments. I will follow your suggestions.

Thanks again

Tony