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By: Scott Grossman on August 27th, 2016

Involving The Probate Court With A Trust Administration Due To Incapacity


When your loved one created his estate plan, he may have taken the wise step of setting up a trust to govern most of his assets. Your loved one was likely named as the settlor of the trust as well as the initial trustee during his lifetime. Within this trust, there may be a provision that states that if the settlor (your loved one) becomes mentally incapacitated, then a successor trustee may step in and take over the trustees duties. Unfortunately, some trusts do not clearly define how incapacity should be determined.

Five Factors for Determining Incapacity

If the trust does not contain clear instructions as to what constitutes the mental incapacity of your loved one, you may need to seek court intervention. An experienced attorney can help you prepare a petition to be filed with the court. Once the court is involved, it will evaluate whether your loved one meets any of the following:

  1. Your loved one is having difficulty staying alert.
  2. Your loved one is having difficulty paying attention.
  3. Your loved one is having difficulty with normal thought processes.
  4. Your loved one is having difficulty modulating his or her mood.
  5. Your loved one’s ability to understand and appreciate his actions is significantly impaired.

Depending on where your loved one falls under these tests, the court may decide that he is incapacitated. If you are named the successor trustee under the terms of the trust, your loved one will be removed and you will be appointed. From there, you will have the ability to manage and control the assets of the trust as well as obtain the proper care for your loved one.

Dealing with sensitive matters such as these is never easy. However, taking care of your loved one and his assets when he is incapacitated is an important responsibility. We are here to guide you with compassion and knowledge. Send us an email today to get started.

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Evidence of Mental Incompetence

The Grossman Law Firm, APC (951) 523-8307