Alzheimer’s diagnosis complicates Transfer on Death Deed plan
The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: Can my husband sign a Transfer on Death Deed if he has a diagnosis of Alzheimer’s but still understands and can sign his name?
A: The Texas statute says that a person who wants to sign a Transfer on Death Deed must have the capacity to make a contract.
That means your husband must understand the nature, effect and consequences of signing the Transfer on Death Deed. Just having some mental deficiencies is not enough to render your husband unable to sign. Importantly, there is a presumption that a person has capacity. It is up to the party contesting capacity to prove a lack thereof.
In the case of your husband, many attorneys will automatically refuse to perform any legal services for your husband once you mention he has been diagnosed with Alzheimer’s. But no doubt other attorneys will agree to work with him as long as he appears to understand the document, assuming he is able to carry on a conversation without repeating questions over and over.
If you want to greatly increase the chances your attorney will agree to work with you, take your husband to his Alzheimer’s doctor, and have the doctor prepare a report confirming that your husband has the capacity to make a contract, or even sign a will. That way, your attorney will have documentation in the file to justify allowing your husband to proceed with the signing.
Of course, you might prepare the form without the assistance of an attorney. If so, then you will completely avoid the issue of having to convince an attorney that your husband is able to sign. There may be a challenge months or years from now, but the burden of proof will be on the party asserting your husband did not have capacity.
Q: My mother passed away and all of her assets other than her home passed directly to me, her only child. Is there now a simple way to avoid having to probate her will? I don’t want to sell the home.
A: To get title to the home changed to your name, you are going to have to go through some sort of probate.
You might be able to use a Small Estate Affidavit, which would be the cheapest and simplest type of probate, or you might be able to probate your mother’s will as a muniment of title (a slightly less complicated probate proceeding). To know for sure which is your best approach, you should meet with an attorney.