If a beneficiary has Alzheimer's, does he still inherit the estate? 35 Answers as of November 27, 2012

My father was diagnosed with Alzheimer's recently, and my mother died on 11/11/12. Her Will specifies that all insurance policies go to him, but he is not mentally sound enough to handle the funds. If I am listed as the beneficiary, does he still get the money? Is it required to file for probate of the Will if everything goes to my father anyway?

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LAW OFFICE OF ROBERT I LONG
LAW OFFICE OF ROBERT I LONG | Robert I. Long
If a person is considered alive and satisfies any condition to inheriting set out in the will, e.g., survives for 30 days, then the inherit. Once he has inherited there may need to be a guardianship (or, in CA, a conservatorship), especially if the funds becoming "available" to him under Medi-Cal/ Medicaid guidelines cut off all his benefits, such as nursing home care.
Answer Applies to: California
Replied: 11/27/2012
Paul Nidich, Attorney at law
Paul Nidich, Attorney at law | Paul Nidich
First, an Estate should be opened with your county Probate Court. You should hire an attorney who can advise you which of the three categories of Estates is the proper one to open. The Estate can be a Full Administration, a Relief from Administration, or a Summary Release from Administration. Which category your father's estate falls into depends upon a number of factors, but primarily the amount of money that goes through probate. Second, the insurance policies are not governed by the terms of a will. Insurance policies are a contract, and the insurance company will pay the proceeds of the policy to whomever is named as the Primary Beneficiary. Unless the Primary Beneficiary is the Estate of the Owner, or the Primary Beneficiary is deceased and there is no Secondary Beneficiary, no insurance proceeds are affected by the will. Third, If a Beneficiary of an insurance policy, or a will, or a trust has Alzheimer's or some other condition that makes the Beneficiary incompetent to handle the money, a Guardianship should be applied for through the probate court. Having a condition that makes one incompetent to handle funds does not mean the individual cannot inherit. It just means that the guardian will make the decisions to request permission from the probate court to spend money for the benefit of that individual. The guardian cannot spend money without the court's permission. Finally, I'm a little confused about your status as a beneficiary. If you are a conditional beneficiary, that is, if everything goes to your father, then your father will inherit everything, and none of your mother's probate assets go to you. I hope this helps you understand the process.
Answer Applies to: Ohio
Replied: 11/27/2012
Law Office of Pamela Braynon | Pamela Y. Braynon
The purpose of probate is to: 1) pay the creditors of the decedent and 2) to transfer property to the beneficiaries as listed in the will. If there is real property that your father is not on the deed, then yes it will be required to file probate to transfer the real property and any other property that was only in your mother's name (i.e. automobiles). Otherwise if every thing in your mother's will is to go to your father, it won't be necessary to file probate. As far as the insurance is concerned, that was a contract between your mother and the insurance company. The insurance company will pay the beneficiaries of the insurance policy. If your father is listed as a beneficiary, the insurance company with pay him. If you are the sole beneficiary, then you will receive the money. That's not to say that you can't out of the goodness of your heart follow your mother's wishes. But please have an attorney look at the policy to see what the terms are.
Answer Applies to: Florida
Replied: 11/25/2012
The Taylor Law Office L.L.C.
The Taylor Law Office L.L.C. | Ian A. Taylor
I'm sorry for your loss. This can be a very complex question with a complex solution. I recommend that you contact a local attorney on behalf of the person with disability for help. The details you provide below result in some complexities for the estate as well: An individual, regardless of disability (mental disability, Alzheimer's, etc.) can inherit property. Their ability to use or manage the property is irrelevant in regards to the right to possess the property. However, it may be necessary to have a trust or conservator or guardian, depending on the circumstances, for someone else to manage the property of the disabled person. Insurance policies are considered non-probate property. Therefore they pass according to the listed beneficiaries chosen by the owner of the policy before they die. Even if a will lists a beneficiary for insurance, the insurance policies will pass to the beneficiary listed in the policy. Probate is not always necessary. The need for probate is dependant on the type of property and size of estate, and the possibility of complications such as creditor issues, disputes. Therefore, how many and who the beneficiaries are is less relevant to whether probate is needed. Should you need assistance, please contact a probate or estates attorney for help. It appears that this estate is complicated enough to require help.
Answer Applies to: South Carolina
Replied: 11/21/2012
The Law Offices of Laurie E. Ohall, P.A.
The Law Offices of Laurie E. Ohall, P.A. | Laurie E. Ohall
Even though your father may be incapacitated due to his Alzheimer's diagnosis, he can still inherit property. If he is unable to manage the property, and you are his agent under his power of attorney, then you can manage the property for him. If he does not have a durable power of attorney (and is unable to sign one now due to his incapacity), then your only alternative may be to file for guardianship on his behalf and be appointed his guardian to manage his property. With regards to your question about the life insurance - life insurance policies generally have a beneficiary designation. If your mother designated your father as the primary beneficiary, then he will be entitled to the proceeds. If you are the contingent beneficiary, you would only be entitled to the proceeds if he had predeceased your mother. A Will only governs the assets that go through probate. If the insurance has a beneficiary designation (you or your father), it will not go through probate and the Will provisions are meaningless regarding the insurance. However, if the insurance beneficiary is your mother's "estate", then it will go through probate and be subject to creditor's claims. It might be a good idea for you to schedule a consultation with a probate attorney and/or an elder law attorney to help you deal with these different issues.
Answer Applies to: Florida
Replied: 11/21/2012
    O'Keefe Legal Services, L.L.C.
    O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
    In Maryland, a mentally incompetent beneficiary or one with Alzheimer's may inherit, though it may be wise for the beneficiary to have an agent or guardian of the property to manage the asset(s). If you are listed as the beneficiary of an insurance policy under the policy, then the insurance proceeds should go to you by operation of law through the insurance agreement, and not pass through the will. If there are probate assets (assets not passing by beneficiary designations, but through the will), then a probate estate will need to be filed/opened to administer and distribute the probate property.
    Answer Applies to: Maryland
    Replied: 11/21/2012
    Martinson & Beason, PC
    Martinson & Beason, PC | Douglas C Martinson II
    You father would inherit or receive those assets even though he has Alzheimer's. If he is unable to manage them, someone with a Power of Attorney could manage the money for him. If he does not have a PoA, then a Conservator would need to be appointed to manage his assets. If all the assets are joint or if your father is the beneficiary of the assets (IRA, 401k, deed and bank accounts held Joint Tenants with Right of Survivorship), then there would be no need to probate the will. Only if there are assets solely in the name of your mother, would the will have to be probated.
    Answer Applies to: Alabama
    Replied: 11/21/2012
    Law Offices of Charles R. Perry
    Law Offices of Charles R. Perry | Charles R. Perry
    Your father's right to inherit, or to take possession of his half of the community property, is not impacted in any way by his illness. You may, however, need to take action to protect your father's estate. The specific action will depend on the current state of your father's illness. I would consult with a trust and estates lawyer to determine what would be the the best way to handle this. The insurance company will follow the policy and instructions for determining who should receive the policy proceeds. My guess is that it would be you as the beneficiary, but it is not clear. For instance, your father may have a community property right in that proceeds that would need to be honored. There is not enough information to determine if the estate would need to be probated.
    Answer Applies to: California
    Replied: 11/21/2012
    Benjamin D Gordon, Attorney at Law
    Benjamin D Gordon, Attorney at Law | Benjamin D Gordon
    A will actually has no control over insurance proceeds, unless the Estate is the beneficiary of the insurance policies (rare). Life insurance operates outside of probate, and are not subject to wills, typically. If you are the beneficiary of the insurance, the payment will go to you. If your father is the beneficiary, the payment will go to him, and you may need to have a guardian appointed for him through the courts to take care of it if he isn't able to do it himself anymore.
    Answer Applies to: Utah
    Replied: 11/21/2012
    James Oberholtzer, Attorney at Law
    James Oberholtzer, Attorney at Law | James Oberholtzer
    In general, a legally incompetent person can still inherit or otherwise receive assets in an estate. He may need to have a conservator appointed to legally manage his funds if he does not have a trust already. Life insurance is often different. The person named as the life insurance beneficiary receives the assets. It is possible to have the life insurance go by appointment in a Will but it is unusual.
    Answer Applies to: Oregon
    Replied: 11/21/2012
    Law Offices of R. Christine Brown | R. Christine Brown
    If your father lacks capacity, you will have to appointed his conservator. This us the only way to collect his inheritance/insurance policies on his behalf, unless he has a power of attorney naming you as his agent. Probate is necessary if there are assets solely in her name and assets exceed $150,000. If you are the named beneficiary on the policies they belong to you.
    Answer Applies to: California
    Replied: 11/21/2012
    GOLD & ASSOCIATES, P.C.
    GOLD & ASSOCIATES, P.C. | KENNETH GOLD
    It would still go to your father. He may need to have a conservator to handle his funds if he doesnt have a power of attorney.
    Answer Applies to: Michigan
    Replied: 11/21/2012
    Law Office of Patricia A. Simmons
    Law Office of Patricia A. Simmons | Patrica A Simmons
    If your father is unable to handle his own financial affairs due to Alzheimer's, you should petition the court to become his conservator. Were you parents joint owners of the accounts? Is any real property involved? If so, how was title held to the home? You should contact a probate attorney to discuss these issues to determine whether probate proceedings are necessary.
    Answer Applies to: California
    Replied: 11/21/2012
    James T. Dunn PC | James T. Dunn
    He is still entitled to the $. You may want to consider having a guardian appointed over his person and a conservator appointed over his $.
    Answer Applies to: Utah
    Replied: 11/21/2012
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Normally insurance proceeds will pass according to a beneficiary designation, and a probate will not be needed. But, yes, if father is still alive and he is the beneficiary, then the money will be paid to him. Other property will be held jointly, with right of survivorship, and no probate will be needed. If Mother had any property just in her name, then probate will be needed. If Father can no longer handle his affairs (and please, "diagnosed with Alzheimers" does not equal "incapacitated." You should work with your father and determine what capabilities he still has, and make decisions cooperatively to the greatest extent he is still able to do so. You are getting older too treat your dad the way you want to be treated when your time comes.) then a conservatorship may be necessary to handle his affairs. You should be doing a comprehensive review of your father's estate plan and the plan for getting him the care he needs. Failure to plan is planning to fail.
    Answer Applies to: Oregon
    Replied: 11/21/2012
    Ben T. Liu Law Office
    Ben T. Liu Law Office | Ben T. Liu
    If you are the beneficiary, you should get the insurance proceeds and probate is not necessary. You many want to discuss with a lawyer about why your mother state in the will that the insurance money goes to your father if you are the beneficiary of the policy. Any assets in your mother's sole name will have to be probated to change ownership.
    Answer Applies to: Michigan
    Replied: 11/21/2012
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    You need to speak with an attorney about establishing a guardianship of your father. With regard to what assets he inherits. Generally speaking, if an insurance policy has a beneficiary it passes to that beneficiary not pursuant to the Will, unless the insurance policy names the estate as the beneficiary. You should make an appointment to address all of these issues with an attorney who is qualified to review the insurance policies, Will and advise you accordingly.
    Answer Applies to: Nevada
    Replied: 11/21/2012
    Frederick & Frederick PLC | James P Frederick
    You have a number of different issues, here and I am not entirely sure I understand your facts. Having Alzheimer's does not preclude someone from receiving assets as an inheritance. If your father is not mentally competent, however, he *should* have someone managing his affairs. Ideally, this would be someone he selected, acting under a Power of Attorney form. If that is not possible because he did not do the planning and he is no longer able to do so, then you can be appointed his conservator. That would allow you to manage HIS assets for his benefit. In the case of insurance, if you are the beneficiary, then it belongs to you, regardless what the Will says. Only assets passing through probate are controlled by the Will. Insurance passes to the named beneficiary outside of probate. Probate may or may not be necessary, depending on HOW the assets pass to your father. If everything was jointly owned and he is the survivor, then probate would not be necessary. The same is true if all of the assets had beneficiary designations. Assets that were titled in your mom's name alone would need to go through probate.
    Answer Applies to: Michigan
    Replied: 11/21/2012
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    The right to inherit is based on being alive. It has nothing to do with competence. Insurance policies do not go through probate so what a will provides for insurance policies makes no difference. If the insurance policies have a named beneficiary, then the death benefit goes to that person. Only if the beneficiary is the estate of the deceased will the insurance be paid through the will as an asset, not because it is insurance.
    Answer Applies to: California
    Replied: 11/21/2012
    Hamblin Law Office | Sally Hamblin
    The mental state of a person does not preclude the person to take per the will. Regarding insurance policies, the named beneficiary would take regardless of what the will states. In your case if you are solely named as beneficiary on insurance, you would take the money. No probate is necessary for that. Some policies state a primary beneficiary and if that person is deceased, then the money would go to secondary beneficiary. A will if you know of its existence must be filed.
    Answer Applies to: Michigan
    Replied: 11/20/2012
    Geoff Germane, Attorney at Law | Geoff Germane
    Please accept my condolences on the passing of your mother, and the health of your father. A person's health or legal capacity does not affect their right or ability to inherit-but it does affect their ability to manage an inheritance. Any inheritance left to someone without legal capacity, including a minor or an incapacitated adult, will likely require the appointment of a conservator to manage the inheritance. If the incapacitated person previously had legal capacity and executed a power of attorney, the agent named in that document can probably manage the inheritance without the need of court intervention. The life insurance question, and the apparent disparity between the will and the beneficiary designation, is another issue. The beneficiary designation governs, so if that names you as the beneficiary, it doesn't matter what the will says; you are entitled to the proceeds. Whether or not probate is required depends on the nature of the assets. If there are more than 100k in assets that are titled in the name of your deceased mother, a probate will be necessary to transfer ownership. I recommend you contact an attorney with significant probate experience to assist you in this one.
    Answer Applies to: Utah
    Replied: 11/20/2012
    Danville Law Group | Scott Jordan
    I am sorry for your recent loss. Did your Father sign a Durable Power of Attorney before his illness? Are you the Agent? If not, before anything can be done, you will need to petition the local probate court for Conservatorship over your father. Once you obtain Letters, you can then decide what do with your Father's estate. Did you mother only have Will? Your father inherits everything by law. However, until you have a DPOA or Letters of Conservatorship, you cannot do anything with the money. As for the life insurance, if you are the beneficiary, you get it. You can do whatever you want with the money.
    Answer Applies to: California
    Replied: 11/20/2012
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    Yes a beneficiary with Alzheimer's can still inherit from an estate. However, if you are the beneficiary of a life insurance policy, that is yours and is not part of the estate. No probate is required of the will if there are not other assets in the estate. Don't let anyone lean on you about sharing the proceeds you receive as a beneficiary of the insurance policies, regardless of what the will states. First in time is first in right, and the will only became effective on death, but the life insurance beneficiary designation came first.
    Answer Applies to: California
    Replied: 11/20/2012
    Neal M. Rimer, Esquire
    Neal M. Rimer, Esquire | Neal M. Rimer
    If a beneficiary has Alzheimer's, he still does inherit the estate. It sounds like you might have to begin a conservatorship to handle all your father's affairs. If your parents had a living trust, then perhaps a conservatorship would be unnecessary. Do you have an Advanced Health Care Directive or a Durable Power of Attorney for Health Care for your father? If assets are solely in your mother's name, then probate is required to change title. If assets are held as community property, you still need to have a probate to clear title. If title to their assets are held as husband and wife as community property with the right of survivorship, there is no need for probate, but, there are steps that are required to clear title in your father's name. If assets are in joint tenancy, then no probate would be required to transfer the assets from your mother to your father, but, again, there is a need to do additional work to clear title into your father's name. A beneficiary designation on a life insurance policy that names you as the beneficiary results in you being able to obtain the proceeds after your file your claim with a death certificate. Your mother's Will is not going to change the beneficiary designation of a life insurance policy.
    Answer Applies to: California
    Replied: 11/20/2012
    Gates' Law, PLLC | Thomas E. Gates
    You must file the will so that creditors know of your mother's death and can submit claims against her estate. If your father is unable to manage his affairs the court can appoint a guardian for him. If both are listed as beneficiaries, each would get the percentage specified in the insurance documents.
    Answer Applies to: Washington
    Replied: 11/20/2012
    Bullivant Houser Bailey PC
    Bullivant Houser Bailey PC | Darin Christensen
    The beneficiary designations on the policy trump what the will says. However, even with Alzheimer's, your father gets whatever portion of the probate assets (which would not include life insurance not payable to the estate) the will says he gets.
    Answer Applies to: Oregon
    Replied: 11/20/2012
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    Insurance policies pass outside a Will, so whoever is named as beneficiary of the policy will receive the proceeds. It may not be necessary to probate your mother's estate during your father's lifetime if the remaining assets are to go to him; however, you may need to probate one or both of the estates upon his death. I recommend you consult with a probate attorney to discuss this matter in greater detail.
    Answer Applies to: Arizona
    Replied: 11/20/2012
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    I am sorry for your loss and hoe you will be comforted. Your father's disability does not prevent him from inheriting. Life insurance policy proceeds on the death of your mother go to the named beneficiary on the policies. So, if the only named beneficiary is you, the go to you. If you are merely an alternate beneficiary if your father does not survive her, then they go to him. Here will's provision matters only if the policies go to her estate or there is no effective beneficiary designation. You do not need to do a full probate if everything goes to your father, just a Spousal Property Petition.(and if there is no real estate and less than $150,000 of other assets, then likely not even that). Do you (or does somebody else) have authority to act for your father? You MAY need a conservatorship to get authority to manage his assets and make decisions for him. However, appropriate general powers of attorney and advance health care directive may avoid the necessity for this.
    Answer Applies to: California
    Replied: 11/20/2012
    Martin Barnes - Attorney at Law
    Martin Barnes - Attorney at Law | Martin Barnes
    Please accept my condolences for the loss of your mother. Given your father's state of health the loss is doubly difficult I am sure. Your questions are good ones. But they are not necessarily simple ones. Your father should still inherit despite his Alzheimer's diagnosis. However, if he lacks the capacity to care for himself and to make decisions regarding personal matters, you should seek the assistance of an Indiana attorney who can help assist you in taking the appropriate measures necessary to care for your father. I am unsure of your meaning regarding your mother's insurance policies - but if I take your question literally - if you are the beneficiary then the insurance proceeds will go to you. You can then manage those funds in the manner you feel is appropriate given your family circumstance. In order for the Will to be properly executed it must be "proved". Probate is the process for "proving" the Will. In certain circumstances (if the estate is small) there may be an alternative to reduce the formalities of probate by preparing small estate affidavits. The fact that your father is the only named beneficiary in the Will does not alter the requirement to submit the Will to probate. An Indiana attorney can assist you in determining whether this is an appropriate consideration in the estate of your mother. I urge you, on behalf of your father, to consult with an Attorney. Disclaimer: The response above does not form an attorney-client relationship, nor is it intended to be anything other than the opinion of the author. It should not be relied upon as legal advice.
    Answer Applies to: Indiana
    Replied: 11/20/2012
    Edward L. Armstrong, P.C. | Edward L. Armstrong
    Yes, he still inherits notwithstanding the Alzheimer's diagnosis. There will need to be a guardian and conservator appointed for him. If he executed a durable power of attorney, the attorney in fact under that document can take care of this with some legal assistance from an attorney.
    Answer Applies to: Missouri
    Replied: 11/20/2012
    Whiteford, Taylor, & Preston | Edwin Fee
    A disability doesn't prevent someone from receiving insurance proceeds or assets from an estate. If the disabled person isn't mentally competent, then someone could act under a power of attorney (if the disabled person executed one previously), or someone could petition to become guardian of the disabled person. Life insurance passes to the designated beneficiary. Insurance doesn't pass according to the will, unless the estate is designated as the beneficiary.
    Answer Applies to: Maryland
    Replied: 11/20/2012
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    The living spouse will inherit. If he is not competent the money will be held and managed for his benefit. If a person is a named beneficiary the money will be paid to him directly. You must have him declared incompetent and a Conservatory appointed. Your financial plan is not complete until it is co-ordinated with your estate plan. Will your family be provided for when you are gone? Without a Will, the court will decide.
    Answer Applies to: Georgia
    Replied: 11/20/2012
    Law Offices of Robert H. Glorch | Jeffrey R. Gottlieb
    That involved several questions and issues. If assets pass to him by Will or beneficiary designation, then they pass to him unless he can disclaim, regardless of his incapacity. If he is incapacitated and that is not provided for under the Will and he doesn't have a power of attorney, then it might be necessary to go to court to open a guardianship estate for him. You should gather all information and sit down with an attorney to discuss all of the issues and potential solutions.
    Answer Applies to: Illinois
    Replied: 11/20/2012
    Winnick Ruben Hoffnung Peabody & Mendel, LLC | Daniel N. Hoffnung
    Technically he gets it You should think about having a conservator appointed for him.
    Answer Applies to: Connecticut
    Replied: 11/20/2012
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