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Similar to a partition suit is the sale of land of a person "under a disability." Although disability is a wide-ranging term and covers a felon, a child or a drug addict, it usually means a person who is "incapacitated" by illness, mental incapacity, advanced age or a combination thereof. Such a person may not be legally able to execute a listing agreement, deed, contract or will. Even if such a person can legally execute a will or real estate documents, the likelihood of a capacity challenge may necessitate Court approval. Thus, if the incapacitated person is the only owner of a property, the sale of property of a person under a disability procedure would be used. If there are co-owners, other than a spouse, of the property with a person under a disability, then the partition suit procedure should be used.
The suit should join all heirs of the incompetent and show that the sale will benefit the interest of the disabled owner. The suit may be brought by anyone interested in the well-being of a person under a disability. Typically, suit will be initiated by an intestate heir of a person under a disability. If legal incompetency has been found previously by a Court, a duly appointed Conservator may be able to sell the adjudicated incompetent's real property with little Court oversight. The Court action will be an opportunity to address any title defects to ensure that the person under disability's land will pass with clear title.
© 2010 Eugene W. Shannon, PLC
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