By Fredrick P. Niemann, Esq., of Hanlon Niemann, a NJ Alzheimer’s and Dementia Attorney
If an adult in NJ is legally incompetent and does not have an existing Last Will, is there a process for having a Will prepared or does the estate of the Alzheimer’s patient follow NJ’s Intestate laws?
This question and the legal issue it raises comes up fairly often. Generally, when the adult is far into dementia, and/or Alzheimer’s, the family (generally the children) will want to avoid having the estate go into probate.
Pursuant to NJSA 3B:12-49, a court does not have the power to make a will for an incapacitated person. If no Will has been executed prior to incapacity, then the estate goes to beneficiaries by the law of intestacy. However, depending on the value of the estate and the factual circumstances, some estate or tax planning may be done with court approval. For example, a gifting scheme can be approved by the court, upon formal application. We have done this often with success.
If you have questions regarding a family member with Alzheimer’s or dementia, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org/.