Certification by judge
Sec. 5. (a) If a person owning real estate desires to sell the real
estate or a part of the real estate and the person's spouse is, at the
time, mentally incompetent, the person, upon complying with this
section, may sell and convey the real estate by deed without the
joinder of the mentally incompetent spouse. The conveyance has the
same effect as would the joint deed of both spouses.
(b) Before a deed is made under this section, the owner intending
to sell the real estate shall, by petition, apply to the court having
probate jurisdiction in the county where the real estate or a part of
the real estate to be sold is situated, alleging that the owner's spouse
is mentally incompetent and that the incompetency is probably
permanent. Upon the filing of the petition, notice shall be given to
the person alleged to be mentally incompetent, either by service of
process, as provided by law for service of process against
incompetent persons in other civil actions, or, if the person alleged
to be incompetent is by affidavit shown to be a nonresident of
Indiana, by publication.
(c) After notice and upon or after the return day of the notice, the
legally appointed guardian, if any, of the person alleged to be
mentally incompetent or, if there is no guardian, a guardian ad litem
for the person appointed by the court, shall make any proper defense
to the application. The matter of the petition shall be submitted to the
court, and if the allegations are proved to the satisfaction of the
court, the court shall make and enter a finding that the person alleged
to be incompetent is incompetent, and that the incompetency is
probably permanent.
(d) Upon the filing by the petitioner with the clerk of the court of
a bond, in an amount and with surety approved by the court, that is
payable to the state and conditioned to:
(1) keep the mentally incompetent spouse from becoming a
county charge; and
(2) account to the spouse, upon restoration to competency, if the
spouse demands it, fifty percent (50%) of the purchase money
received for the real estate upon sale;
the court shall enter an order authorizing the whole title to be
conveyed by the petitioner without the joinder of the mentally
incompetent spouse.
(e) A deed made under an order of court under this section has the
same effect as the deed of an unmarried person competent to convey
real estate.
(f) If it is shown to the satisfaction of the court having probate
jurisdiction in the county in which lands authorized to be sold under
this section are located that:
(1) the lands were sold under an order authorizing the sale;
(2) the entire proceeds of the sale were invested in other real
estate located in Indiana;
(3) the land purchased with the proceeds of the sale was of no
less value than the land sold under the order;
(4) the title to the land purchased with the proceeds of the sale
was taken in the name of the person having a mentally
incompetent spouse; and
(5) the mentally incompetent spouse will not suffer any loss as
a result of the investment described in subdivision (2);
the court shall enter an order discharging the bond described in
subsection (d) and releasing the sureties from all liabilities on the
bond.
As added by P.L.2-2002, SEC.7.
Last modified: May 24, 2006