§ 32-22-1-5 — Certification by judge

(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.
[Pre-2002 Recodification Citation: 32-1-17-1.]

Legislative History

As added by P.L.2-2002, SEC.7.